R2019-097 2019-04-08 RESOLUTION NO. R2019-97
A Resolution of the City Council of the City of Pearland, Texas, awarding a
Construction Manager at Risk contract for the Surface Water Treatment Plant
Project to Pepper Lawson, in the amount of$1,092,320.00 for pre-construction
services.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That Requests for Proposals for construction of the Surface Water Treatment
Plant Project have been reviewed and tabulated.
Section 2. That the City Council hereby awards a Construction Manager at Risk contract
to Pepper Lawson, in the amount of$1,092,320.00 for pre-construction services.
Section 3. The City Manager or his designee is hereby authorized to execute a
Construction Manager at Risk contract for the Surface Water Treatment Plant Project.
PASSED, APPROVED and ADOPTED this the 8th day of April, A.D., 2019.
TOM REID
MAYOR
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DARRIN M. COKER
CITY ATTORNEY
Resolution No.
R2019-97
AGREEMENT
CONSTRUCTION MANAGER AT RISK
TABLE OF CONTENTS
1. General Provisions
1.1 Relationship of the Parties
1.2 General Conditions
1.3 Contract Documents
1.4 Owner
1.5 Contractor
1.6 Administration of the Contract
1.7 Subcontractors
1.8 Construction by Owner or by Separate Contractor
1.9 Changes in the Work
1.10 Prosecution and Progress
1.11 Payments and Completion
1.12 Protection of Persons and Property
1.13 Insurance and Bonds
1.14 Uncovering and Correction of Work
1.15 Miscellaneous Provisions
1.16 Termination or Suspension of the Contract
2. Construction Manager's Responsibilities
2.1 Construction Planning Services Phase
2.2 Guaranteed Maximum Price Proposal
2.3 Construction Phase
3. Owners Responsibilities
3.1 Information and Services
3.2 Owner's Designated Representatives
3.3 Design Engineer
4. Compensation and Payments for Construction Planning Services
4.1 Compensation
4.2 Payments
5. Compensation for Construction Phase Services
5.1 Compensation
5.2 Guaranteed Maximum Price
5.3 Changes in the Work
6. Cost of the Work for Construction Phase
6.1 Costs to be Reimbursed
6.2 Costs Not to be Reimbursed
6.3 Discounts,Rebates and Refunds
6.4 Accounting Records
7. Construction Phase
7.1 Progress Payments
7.2 Final Payment
8. Miscellaneous Provisions
9. Termination or Suspension
9.1 Termination Prior to Establishing Guaranteed Maximum Price
9.2 Termination Subsequent to Establishing Guaranteed Maximum Price
10. Other Conditions and Services
CITY OF PEARLAND STANDARD
FORM OF AGREEMENT
BETWEEN CITY AND CONSTRUCTION MANAGER AT RISK
This Agreement is entered into by and between the City of Pearland, a Texas home-rule
municipal corporation (the"City")and PLW Waterworks , a Texas corporation(the "Construction
Manager"or Contractor") for the construction of City of Pearland Surface Water Plant.
SECTION 1. GENERAL PROVISIONS
1.1 Relationship of the Parties.
1.1.1 The Construction Manager accepts the relationship of trust and confidence
established with the City by this Agreement, and covenants with the City to furnish the
Construction Manager's reasonable skill and judgment and to cooperate with the Owner's
Designated Representative and Design Engineer(s) in furthering the interests of the City. The
Construction Manager shall furnish construction administration and management services and
use the Construction Manager's best efforts to perform the Project in an expeditious and
economical manner consistent with the interests of the City. The City shall endeavor to
promote harmony and cooperation among the City, Owner's Designated Representative,
Design Engineer(s), Construction Manager and other persons or entities employed by the City
for the Project.
1.2 General Conditions.
1.2.1 Basic Definitions.
1.2.1.1 Addenda. Addenda are written or graphic instruments issued
prior to the execution of the Contract, which modify or interpret the proposal documents,
including Drawings and Specifications, by additions, deletion, clarification or corrections.
Addenda will become part of the Contract Documents when the Agreement is executed.
1.2.1.2 Approved, Approved Equal and Approved Equivalent, or
Equal relate to the substitution of materials, equipment or procedure approved in writing
by the Design Engineer prior to receipt of proposals. The substitution procedure
process to be followed prior to receipt of competitive sealed proposals is described in the
instruction to proposers.
1.2.1.3 Calendar Day. A "calendar day" is any day of the week or
Month or year,no days being excepted. Unless otherwise expressly provided, all references
to"day(s)"shall mean Calendar Day(s).
1.2.1.4 City / City Representative. Whenever the word "City" is used, it
shall mean and be understood as referring to the City of Pearland, Texas. The word"Owner"
shall refer to the same entity and may be used interchangeably. Whenever the words "City's
Representative" or "Representative" are used, it shall mean and be understood as referring
to the City Project Manager or his delegate, who shall act as the City's agent. The
City's Representative may inspect and issue instructions but shall not directly
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supervise the Contractor. The City's inspector has authority to reject the Work for failure to
comply with the Contract Documents and/or applicable laws.
1.2.1.5 Contract Definitions: The term "Contract Documents" shall mean
those documents listed in Paragraph 1.3. The Contract Documents form the Contract for
Construction. The Contract represents the entire and integrated agreement between the
parties hereto and supersedes prior negotiations, representations or agreements, either
written or oral. The Contract may be amended or modified only by a written Modification.
The Contract Documents shall not be construed to create a contractual relationship of any
kind (1) between the Design Engineer and Contractor, (2) between the City and a
Subcontractor or Sub-subcontractor, (3) between the City and Design Engineer or (4)
between any persons or entities other than the City and Contractor. The Design Engineer
shall be entitled, however, to performance and enforcement of obligations of the
Contractor under the Contract intended to facilitate performance of the Design Engineer's
duties.
1.2.1.6 Contractor. Whenever the word "Contractor" is used, it shall
mean the person(s), partnership, or corporation who has agreed to perform the work
embraced in this Agreement and the other Contract Documents; specifically it shall mean
the Construction Manager.
1.2.1.7 Contract Time. The period of time which is established in the
Contract Documents for Substantial Completion of the Work. This period of time shall
be accounted for in Calendar Days, as defined above, and is not subject to
adjustment or extension without the written agreement of the City. The following
definitions shall apply to Contract Time calculations:
a. Work Day: As used herein, a "Work Day" is defined as any Monday
through Friday, not a legal holiday, and any Saturday or Sunday
specifically approved by the OWNER, in which the CONTRACTOR can
perform six or more hours of work per the current construction schedule.
CONTRACTOR agrees to request specific approval from the Construction
Manager or Owner, in advance, to perform work on Saturdays or Sundays
and in so doing agrees to pay all charges and costs for Inspection and or
Construction Management services required during the performance of any
such approved work.
b. Rain Day: As used herein, is defined as any WORK DAY during which
weather-related conditions prevent the CONTRACTOR from performing
four (4) or more consecutive hours of work on critical path items as
identified in the current construction schedule. CONTRACTOR shall
record Rain Days on the Pay Application each month for the review and
possible approval by the OWNER. The approved Rain Day is then added
to the Contract Time.
c. IMPACT DAY: As used herein, is a day that is added to the
CONTRACT TIME by the OWNER by Change Order to extend the
Contract Time by one full Work Day. Impact Days, once approved by the
OWNER, shall extend the Contract Time on a one-to-one basis to replace a
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Work Day lost to conditions that prevented the CONTRACTOR from
performing four (4) or more consecutive hours of work on critical path
items. Impact Days are added to the Contract Time by Change Order only
at the end of the work and then only if, in the opinion of the OWNER, a
time extension is warranted due to delays beyond the control of the
Contractor and required to complete the work within the Contract Time
1.2.1.8 Drawings. The Drawings are the graphic and pictorial portions
of the Contract Documents showing the design, location and dimensions of the Work,
generally including plans, elevations, sections, details, schedules and diagrams.
1.2.1.9 Extra Work. The term "Extra Work" shall mean and include
work that is not covered or contemplated by the Contract Documents but that may be
required by the City's Representative and approved by the City in writing prior to the work
being done by the Contractor.
1.2.1.10 Final Completion. The term "Final Completion" shall mean that
all the work has been completed, all final punch list items have been inspected and
satisfactorily completed, all payments to material suppliers and subcontractors have been
made, all documentation and warranties have been submitted, and all closeout
documents have been executed and approved by the City.
1.2.1.11 Interpretation of Phrases. Whenever the words "directed",
"permitted", "designated", "required", "considered necessary", "prescribed", or words of
like import are used, it is understood that the direction, requirement, permission, order,
designation, or prescription of the City's Representative is intended. Similarly, the words
"approved", "acceptable", "satisfactory", or words of like import shall mean approved by,
accepted by, or satisfactory to the City's Representative. In the interest of brevity, the
Contract Documents may omit modifying words such as "all" or"any" and articles such as
"the" and "an", but the fact that a modifier or an article is absent from one statement and
appears in another is not intended to affect the interpretation of either statement.
1.2.1.12 Nonconforming work. The term "nonconforming work" shall
mean work or any part thereof that is rejected by the City's Representative as not
conforming with the Contract Documents.
1.2.1.13 Notice to Proceed. A notice that may be given by the Owner to
the Contractor that directs the Contractor to start the Work.
1.2.1.14 Partial Substantial Completion. Designation of Partial
substantial Completion may be provided on components of the Work that must be placed
into service prior to the completion of the entire Work. The contractor's One Year
Warranty period for these items shall begin on the date of Partial Substantial Completion
as designated by the Design Engineer. The Design Engineer shall determine and make all
such designations.
1.2.1.15 Parties. The `'parties" are the City and the Contractor.
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1.2.1.16 Project. The term "Project" shall mean and include all that is
required to obtain a final product that is acceptable to the City. The term "work"shall have
like meaning. The Project is the total construction of which the Work performed under the
Contract Documents may be the whole or a part and which may include construction by the
City or by separate contractors.
1.2.1.17 ProTrak. As used herein describes the City's project
management software used to enhance communications between the project team
members. All product submittals, RFI's, RFPs, plan sheet changes, plans and specs are
held and available to all team members within this web-based software. All payment
applications are made and approved within the software. All team members will be given
access and will use this software platform for project document transmittals.
1.2.1.18 Punch List. A comprehensive list prepared by the City prior to
Substantial Completion to establish all items to be completed or corrected; this list may be
supplemented by the Design Engineer or the City.
1.2.1.19 Specifications. The Specifications are that portion of the
Contract Documents consisting of the written requirements for materials, equipment,
systems, standards and workmanship for the Work, and performance of related services.
Organization of the Specifications into divisions, sections and articles, and arrangement of
drawings shall not control the Contractor in dividing the Work among Subcontractors or in
establishing the extent of Work to be performed by any trade.
1.2.1.20 Subcontractor. The term "subcontractor" shall mean and
include only those hired by and having a direct contact with Contractor for performance of
work on the Project. The City shall have no responsibility to any subcontractor employed
by a Contractor for performance of work on the Project, and all subcontractors shall look
exclusively to the Contractor for any payments due.
1.2.1.21 Substantial Completion. The term "Substantially Completed"
means that in the sole discretion of the City's Representative, the Project, including all
systems and improvements, is in a condition to serve its intended purpose but still may
require minor miscellaneous work and adjustment. Final payment of the Agreement Price,
including retainage, however, shall be withheld until Final Completion and acceptance of
the work by the City. Acceptance by the City shall not impair or waive any warranty
obligation of Contractor.
1.2.1.22 Work. The term "Work" means the construction and services
required by the Contract Documents, whether completed or partially completed, and
includes all other labor,materials, equipment and services provided or to be provided by the
Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a
part of the Project. The Work includes all labor, parts, supplies, skill, supervision,
transportation, services, and other facilities and things necessary, proper or incidental to the
carrying out and completion of the terms of the Contract Documents and all other items of
cost or value needed to produce, construct and fully complete the Work identified by the
Contract Documents.
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1.2.1.23 Unless otherwise stated in the Contract Documents, words
which have well-known technical or construction industry meanings are used in the Contract
Documents in accordance with such recognized meanings.
1.3 Contract Documents.
1.3.1 The Contract Documents and their priority shall be as follows:
1.3.1.1 This signed Agreement
1.3.1.2 Addendum to this Agreement
1.3.1.3 Special Conditions
1.3.1.4 Technical specifications
1.3.1.5 Drawings
1.3.1.6 Instructions to Bidders and any other notices to Bidders or
Contractor
1.3.1.7 Performance bond, Payment bonds, Bid bonds and Special bonds
1.3.1.8 Contractor's Proposal
1.3.2 Where applicable, the Contractor will be furnished one (1) CD of plans,
drawings, specifications, and related Contract Documents for its use during construction. Plans
and specifications provided for use during construction shall be furnished directly to the
Contractor only.
1.3.3 The Contractor shall distribute copies of the plans and specifications to
suppliers and subcontractors as necessary. The Contractor shall keep one (1) copy of the plans
and specifications accessible at the work site with the latest revisions noted thereon. For proper
execution of the work contemplated by this Agreement.
1.3.4 All drawings, specifications, and copies thereof furnished by the City
shall not be re-used on other work,and with the exception of one(1)copy of the signed Contract
Documents, all documents, including sets of the plans and specifications and"as built"drawings,
are to be returned to the City on request at the completion of the work. All Contract Documents,
models, mockups, or other representations are the property of the City. In the event of
inconsistencies within or between parts of the Contract Documents, the Contractor shall (1)
provide the better quality or greater quantity of Work, or (2) comply with the more stringent
requirement, either or both in accordance with the City's interpretation.
1.4 Owner.
1.4.1 The Owner (or City) is the person or entity identified as such in the
Agreement and is referred to throughout the Contract Documents as if singular in number. The
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term "Owner" means the City of Pearland or the City's authorized representative. The terms
"Owner"and"City"may be used interchangeably throughout this Agreement.
1.4.2 The presence of the City, Owner's Designated Representative, or
Design Engineer at the Work site does not imply acceptance or approval of Work.
1.4.3 Information And Services Required Of The Owner.
1.4.3.1 Information or services reasonably necessary for the Work and
under the City's control shall be furnished by the City with reasonable promptness where
requested in writing by the Contractor. In any instance where information or services
from the City, Owner's Designated Representative, or Design Engineer is required,
Contractor shall promptly notify the Owner's Designated Representative in writing, with
a copy to the City, of the particular need. Absent such notification, any Claim based
upon lack of such information or services shall be waived.
1.4.4 Owner's Right to Stop the Work.
1.4.4.1 If the Contractor fails to correct Work which is not in
accordance with the requirements of the Contract Documents as required by Paragraph
1.14.2. or persistently fails to carry out Work in accordance with the Contract Documents,
the City may issue a written order to the Contractor to stop the Work,or any portion thereof,
until the cause for such order has been eliminated; however, the right of the City to stop the
Work shall not give rise to a duty on the part of the City to exercise this right for the benefit
of the Contractor or any other person or entity.
1.4.5 Owner's Right to Carry Out the Work.
1.4.5.1 If the Contractor defaults or neglects to carry out the Work in
accordance with the Contract Documents and fails within a seven-day period after receipt
of written notice from the City to commence and continue correction of such default or
neglect with diligence and promptness, the City may, without prejudice to other remedies
the City may have,correct such deficiencies. In such case an appropriate Change Order shall
be issued deducting from payments then or thereafter due the Contractor the cost of
correcting such deficiencies, including compensation for the Owner's Designated
Representative and Design Engineer's additional services made necessary by such default,
neglect or failure. If payments then or thereafter due the Contractor are not sufficient to
cover such amounts, the Contractor shall pay the difference to the City.
1.4.5.2 After the Work is complete, the City may make emergency
repairs to the Work, if necessary, to prevent further damage, or if the Contractor does not
promptly respond to a notice of condition requiring repairs. Contractor shall be responsible
to City for this cost if the repairs are due to the Contractor's defective Work. If payments
then or thereafter due the Contractor are not sufficient to cover such costs, the Contractor
shall pay the difference to the City.
1.4.6 Owner's Right to Use or Occupy.
1.4.6.1 The City shall have the right to occupy or use without
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prejudice to the right of either party, any completed or largely completed portions of the
Project, notwithstanding the time for completing the entire Work or such portions may not
have expired. Such occupancy and use shall not constitute acceptance of any Work not in
accordance with the Contract Documents.
1.5 Contractor.
1.5.1 The Contractor is the person or entity identified as such in the Agreement
and is referred to throughout the Contract Documents as if singular in number. The
term "Contractor"means the Contractor or the Contractor's authorized representative.
1.5.2 The Contractor shall perform the Work in accordance with the Contract
Documents
1.5.3 The Contractor shall not be relieved of obligations to perform the Work
in accordance with the Contract Documents either by activities or duties of the Owner's
Designated Representative or Design Engineer in the Owner's Designated Representative's
administration of the Contract, or by tests, inspections or approvals required or performed
by persons other than the Contractor.
1.5.4 Review of Contract Documents and Field Conditions by Contractor.
1.5.4.1 The Contractor shall carefully study and compare the
Agreement, Conditions of the Contract, Drawings, Specifications, Addenda, and
Modifications and shall at once report to the Owner's Designated Representative any error,
inconsistency, or omission the Contractor discovers. These obligations are for the purpose
of facilitating construction by the Contractor and are not for the purpose of discovering
errors, omissions, or inconsistencies in the Contract Documents; however, any errors,
inconsistencies or omissions discovered by the Contractor shall be reported promptly to
the Owner's Designated Representative as a request for information in such form as the
Owner's Designated Representative may require. If the Contractor performs any
construction activity knowing it involves a recognized error, inconsistency or omission in
the Contract Documents without such notice to the Owner's Designated Representative, the
Contractor shall assume responsibility for such performance and shall pay the total amount
of the attributable costs for correction. Contractor shall not be liable to City, Owner's
Designated Representative, or Design Engineer for any damage resulting from such error,
inconsistency or omission which Contractor should not have discovered or which
Contractor did discover and at once so reported. Contractor shall do no Work without
approved Drawings and Specifications marked Issued for Construction.
1.5.4.2 If the Contractor fails to perform the obligations of Paragraph
1.5.4.1., the Contractor shall pay such costs and damages to the City as would have been
avoided if the Contractor had performed such obligations.
1.5.4.3 The Contractor shall not be entitled to additional
compensation for the "rework portion" of any additional work caused by its failure to
carefully study and compare the Contract Documents prior to execution of the Work.
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1.5.4.4 The Contractor shall make a reasonable attempt to interpret the
Contract Documents before asking the Owner's Designated Representative for
assistance in interpretation. The Contractor shall not ask the Owner's Designated
Representative for observance of work prior to the Contractor's field superintendent's
personal inspection of the Work and his determination that the Work complies with
the Contract Documents. The Contractor shall arrange meetings prior to
commencement of the Work of all major Subcontractors to allow the Subcontractor(s) to
ask for any interpretation it may require.
1.5.4.5 If, in the opinion of the Owner's Designated
Representative, the Contractor does not make a reasonable effort to comply with the
above requirements of the Contract Documents and this causes the Owner's Designated
Representative and/or the Design Engineer or its Consultants to expend an unreasonable
amount of time in the discharge of the duties imposed on the Owner's Designated
Representative and/or the Design Engineer by the Contract Documents,then the Contractor
shall bear the cost of compensation for the Owner's Designated Representative and/or
Design Engineer's additional services made necessary by such failure. The Owner's
Designated Representative will give the Contractor prior notice of intent to bill for
additional services related to above requirements before additional services are
performed.
1.5.4.6 If the Contractor has knowledge that any of the products or
systems specified will perform in a manner that will limit the Contractor's ability to
satisfactorily perform Work or to honor Contractor's Warranty, Contractor shall
promptly notify the Owner's Designated Representative, in writing, providing
substantiation for Contractor's position. Any necessary changes, including substitution
of materials, shall be accomplished by appropriate Modification.
1.5.5 Supervision and Construction Procedures.
1.5.5.1 The Contractor shall supervise and direct the Work, using the
Contractor's best skill and attention. The Contractor shall be solely responsible for and have
control over construction means, methods, techniques, sequences and procedures and for
coordinating all portions of the Work under the Contract, unless the Contract Documents
give other specific instructions concerning these matters. If the Contract Documents give
specific instructions concerning construction means, methods, techniques, sequences or
procedures, the Contractor shall evaluate the jobsite safety thereof and, except as stated
below, shall be fully and solely responsible for the jobsite safety of such means, methods,
techniques, sequences or procedures. If the Contractor determines that such means,
methods, techniques, sequences or procedures may not be safe, the Contractor shall give
timely written notice to the City and Owner's Designated Representative and shall not
proceed with that portion of the Work without further written instructions from the
Owner's Designated Representative.
1.5.5.2 The Contractor shall be responsible to the City for acts and
omissions of the Contractor's employees, Subcontractors and their agents and employees,
and other persons or entities performing portions of the Work for or on behalf of the
Contractor or any of its Subcontractors. It is understood and agreed that the relationship of
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the Contractor to City shall be that of an independent contractor. Nothing contained herein
or inferable herefrom shall be deemed or construed to(1)make Contractor the agent,servant
or employee of the City, or(2) to create any partnership,joint venture, or other association
between City and Contractor. Any direction or instruction by City or any of its authorized
representatives in respect of the Work shall relate to the results the City desires to obtain
from the Work, and shall in no way affect Contractor's independent contractor status
described herein.
1.5.5.3 The Contractor shall be responsible for inspection of portions
of Work already performed to determine that such portions are in proper condition to receive
subsequent Work.
1.5.5.4 Contractor shall execute the Work in a good and workmanlike
manner, continuously and diligently in accordance with generally accepted standards of
construction management and practice for construction of projects similar to the Project,
using qualified, careful and efficient workers and in conformity with the provisions of this
Contract and the other Contract Documents.
1.5.6 Labor and Materials.
1.5.6.1 Unless otherwise provided in the Contract Documents, the
Contractor shall provide and pay for labor, materials, equipment, tools, construction
equipment and machinery, water, heat, utilities, transportation, and other facilities and
services necessary for proper execution and completion of the Work, whether temporary or
permanent and whether or not incorporated or to be incorporated in the Work.
1.5.6.2 The Contractor may make substitutions only with the consent
of the City, after evaluation by the Design Engineer and in accordance with a Change
Order.
1.5.6.3 The Contractor shall enforce strict discipline and good order
among the Contractor's employees and other persons carrying out the Contract. The
Contractor shall not permit employment of unfit persons or persons not skilled in tasks
assigned to them.
1.5.7 Warranty.
1.5.7.1 The Contractor warrants to the City that materials and
equipment furnished under the Contract will be of good quality and new unless
otherwise required or permitted by the Contract Documents, that the Work will be free
from defects not inherent in the quality required or permitted, and that the Work will
conform to the requirements of the Contract Documents and recognized industry standards.
Work not conforming to these requirements, including substitutions not properly approved
and authorized, may be considered defective. The Contractor's warranty excludes remedy
for damage or defect caused by abuse, modifications not executed by the Contractor,
improper or insufficient maintenance (unless such maintenance is Contractor's
responsibility), improper operation, or normal wear and tear. If required by the Owner's
Designated Representative, the Contractor shall furnish satisfactory evidence as to the kind
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and quality of materials and equipment. The warranties set out in this Paragraph are not
exclusive of any other warranties or guarantees set out in other places in the Contract
Documents or implied under applicable law.
1.5.7.2 Prior to final payment, Contractor shall furnish any
manufacturer warranties required by the Contract Documents.
1.5.7.3 When deemed necessary by the City, and prior to installation
of any items specifically made subject to a performance standard or regulatory agency
standard under any provision of the Contract Documents, Contractor shall furnish proof of
conformance to the Owner's Designated Representative and/or Design Engineer. Proof of
Conformance shall be in the form of(1) an affidavit from the manufacturer certifying
that the item is in conformance with the applicable standard, (2) an affidavit from a
testing laboratory certifying that the product has been tested within the past year and is in
conformance with the appreciated standard, or(3)such further reasonable proof as required
by the Owner's Designated Representative and/or Design Engineer.
1.5.7.4 The warranties of Contractor provided in Subparagraph
1.5.7.1. shall in no way limit or abridge the warranties of the suppliers of equipment and
system which are to comprise a portion of the Work and all of such warranties shall be in
form and substance as required by the Contract Documents. Contractor shall take no action
or fail to act in any way which results in the termination or expiration of such third party
warranties or which otherwise results in prejudice to the rights of City under such
warranties. Contractor agrees to provide all notices required for the effectiveness of such
warranties and shall include provisions in the contracts with the providers and
manufacturers of such systems and equipment whereby the City shall have a direct right,
but not a duty, of enforcement of such warranty obligations.
1.5.7.5 In the event of failure of materials, products, or workmanship,
either during construction or the warranty period(which shall be one(1) year from the Date
of Final Completion, except where a longer period is specified), the Contractor shall take
appropriate measures to assure correction or replacement of the defective items, whether
notified by the City or Owner's Designated Representative.
1.5.7.6 Approximately eleven (11) months after Substantial
Completion, the Contractor shall accompany the City and Owner's Designated
Representative on a complete inspection of the Project and be responsible for correcting
any observed or reported deficiencies within thirty(30)calendar days.
1.5.8 Permits,Fees and Notices.
1.5.8.1 Unless otherwise provided in the Contract Documents, the
Contractor shall establish an Allowance in the GMP for the payment for gas, electric utility
connections to the project. Owner shall pay the Contractor the direct costs of these connection
fees as determined by the Utility's Terms and Conditions statement.
1.5.8.2 Water and Sewer utilities will be established,and service
provided at no-charge to the contractor. However,the contractor may provide the site with a
temporary"hydrant meter"obtainable from the Public Works department for the refundable
deposit of$1,500.00 plus a non-refundable$75.00 setting fee.
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1.5.8.3 Upon acceptance of the project as Substantially Complete the
Owner and Contractor shall arrange for the transfer of all utilities to the Owner's account. To
avoid any interruption of critical utility services,Contractor shall notify Owner 60 days prior to
anticipated transfer date. Owner shall immediately make arrangements to establish accounts as
necessary to transfer billing within a seven-day window of the scheduled date. Should transfer
of utility billing be delayed through no fault of Contractor,Owner shall pay Contractor a daily
utility rate equal to the charges accrued between planned transfer date and date of actual transfer.
1.5.8.4 The Contractor shall include and pay for any inspections
necessary for proper execution and completion of the Work which are customarily
secured after execution of the Contract and which are legally required when bids are
received or negotiations concluded. All permit fees for the project shall be the
responsibility of the Owner. The City will not charge inspection fees for inspection
services provided by its internal forces.
1.5.8.5 The Contractor shall comply with and give notices required by
laws, ordinances, rules, regulations and lawful orders and all other requirements of public
authorities applicable to performance of the Work. The Contractor shall procure and obtain
all bonds required of the City or the Contractor by the Contract Documents. In connection
with such bonds, the Contractor shall prepare all applications, supply all necessary back-up
material, and furnish the surety with any required information. The Contractor shall also
obtain and pay all charges for all approvals for street closing and other similar matters as
may be necessary or appropriate from time to time for the performance of the Work.
1.5.8.6 It is not the Contractor's responsibility to ascertain that the
Contract Documents are in accordance with applicable laws, statutes, ordinances, building
codes, and rules and regulations. However, if the Contractor observes that portions of
the Contract Documents are contrary therewith, the Contractor shall promptly notify the
Owner's Designated Representative and City in writing, and necessary changes shall be
accomplished by appropriate Modification.
1.5.8.7 If the Contractor performs Work which it knows to be
contrary to applicable laws, statutes, ordinances, building codes, and rules and regulations
and fails to provide such notice to the Owner's Designated Representative and City, the
Contractor shall be liable for any cost incurred by the City due to the failure to
provide notice and shall promptly remediate any and all work identified to be in
violation.
1.5.8.8 The Contractor shall be responsible for timely notification to
and coordination with all utility companies regarding the provision of or revising of services
to the Project. The Contractor shall inform the Owner's Designated Representative at once
when the City's participation is required. Connections for temporary and permanent
utilities required for the Work are the responsibility of the Contractor. Payment for
temporary and/or permanent utility services through Substantial Completion of the
Work shall be the responsibility of the Contractor.
1.5.9 Allowances.
1.5.9.1 Material and Equipment Allowances: The Contractor shall
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include in the Contract Sum all allowances stated in the Contract Documents or
identified in the development of the GMP. These stated allowances represent the cost
estimate of the materials and equipment delivered and unloaded at the site. The Contractor's
installation labor, overhead, profit, and other expenses contemplated for the allowance
material and equipment shall be included in allowance only where called for in the Contract
Documents. The Contractor shall purchase the allowance materials and equipment as
directed by the Owner's Designated Representative on the basis of the lowest responsive
bids of at least three (3) competitive bids. If the actual cost of the material and equipment
delivered and unloaded at the site is more or less than the individual allowance estimate,
upon City approval the Contract Sum will be adjusted accordingly by Change Order.
The amount of the Change Order shall reflect (1) the difference between
actual costs and the allowances under Paragraph 1.5.9.1 and (2) changes in Contractor's
costs, subject to the limitations set forth at Paragraph 1.9.2.1 (c).
1.5.9.2 Materials and equipment under an allowance shall be selected
with reasonable promptness by the City to avoid delays in the Work (provided that if a
decision is needed by a certain date to avoid delay, Contractor shall notify Owner's
Designated Representative in writing sufficiently in advance of the needed date to allow
reasonable time for selections).
1.5.9.3 Utility Connection Allowances: The Contractor shall
include in the Contract Sum Utility Connection allowances stated in the Contract
Documents or identified in the development of the GMP. These stated allowances
represent the cost estimate of the Terms and Conditions of the Utility to perform the installation
of materials and equipment of the site to provide the project with the subject utility. The
Contractor's labor, overhead, profit, if any, contemplated for the Utility allowance
shall be included in allowance only where called for in the Contract Documents. If the
actual cost of the utility connection fees is more or less than the individual allowance
estimate, upon City approval the Contract Sum will be adjusted accordingly by Change
Order.
1.5.10 Superintendent.
1.5.10.1 The Contractor shall employ a competent superintendent and
necessary assistants who shall be in attendance at the Project site during performance of the
Work. The superintendent shall represent the Contractor, and communications given to the
superintendent shall be as binding as if given to the Contractor. Important communications
shall be confirmed in writing. Other communications shall be similarly confirmed on written
request in each case. Notwithstanding the foregoing, Contractor shall keep on the job the
superintendent approved by City who shall not be transferred from the Project without
City's consent (which shall not be unreasonably withheld). However, such obligation to
furnish the superintendent shall not be construed (1) to preclude the promotion within
Contractor's organization of any person assigned to the Project or (2) to give rise to any
liability of Contractor if any person assigned to the Project leaves Contractor's employ. If
City reasonably determines that any employee of Contractor or of its Subcontractors is
careless or not qualified to perform the Work assigned to him, and City and Contractor
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cannot, after a diligent and good faith attempt, agree what action should be taken with
respect to the removal or reassignment of such employees, the Contractor shall promptly
remove such employee from the Project and replace such employee. At all times while
procurement activities are being performed in Contractor's office, Contractor shall appoint
an individual(approved by City,acting reasonably)authorized to act on behalf of Contractor
and with whom City may consult at all reasonable times, and who shall be authorized to
receive the instructions, requests and decisions of City. All of Contractor's and
Subcontractor's personnel shall comply with all applicable health, safety, and loss
prevention rules of applicable authorities. Contractor shall,at its own expense,remove from
the Project any person who fails to comply with such rules and instructions in any material
respect.
1.5.11 Contractor's Construction Schedules.
1.5.11.1 The Contractor shall, promptly after executing the Contract,
develop a construction schedule reasonably defining a plan for completing the Work within
the required time. The format and detail of the schedule shall be in keeping with the size
and complexity of the Project, and the schedule and all subsequent updates shall be subject
to the approval of the City and Owner's Designated Representative. The schedule and any
updates shall not exceed time limits current under the Contract Documents including
granted time extensions, and shall be revised at appropriate intervals as reasonably
required by the City and Owner's Designated Representative, shall be related to the
entire Project (if more than one Contract is involved in the Project), and shall provide for
expeditious and practicable execution of the Work. All updated schedules shall address the
subject of how the Contractor intends to overcome any delays previously encountered.
The Contractor shall submit to the Owner's Designated Representative with each monthly
Application for Payment, a copy of the updated construction schedule as a prerequisite for
approval of Applications for Payment.
1.5.11.2 The Contractor shall prepare and keep current, for the
Owner's Designated Representative approval, a schedule of submittals which is
coordinated with the Contractor's construction schedule and allows the Design Engineer
reasonable time to review submittals.
1.5.11.3 The Contractor shall perform the Work in general accordance
with the most recent schedules submitted to the City and Owner's Designated
Representative.
1.5.11.4 The process of approving Contractor's schedules and updates
to Contractor's schedules shall not constitute a warranty by the City that any non-Contractor
milestones or activities will occur as set out in the Contractor's schedules. Approval of a
Contractor's schedule does not constitute a commitment by the City to furnish any Owner-
furnished information or material any earlier than City would otherwise be obligated to
furnish that information or material under the Contract Documents. Failure of the Work to
proceed in the sequence scheduled by Contractor shall not alone serve as the basis for a
Claim for additional compensation or time. In the event there is interference with the Work
which is beyond its control, Contractor shall attempt to reschedule the Work in a manner
that will hold the additional time and costs to a minimum. The construction schedules shall
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be in a detailed format satisfactory to the City and the Owner's Designated Representative
and shall also: (1) provide a graphic representation of all activities and events that will
occur during performance of Work; (2) identify each phase of construction and
occupancy; and (3) set forth dates that are critical in ensuring the timely and orderly
completion of the Work in accordance with the requirements of the Contract Documents
(hereinafter referred to as Milestone Dates). If not accepted, the construction schedules
shall be promptly revised by the Contractor in accordance with the recommendations
of the City and Owner's Designated Representative and re-submitted for acceptance.
The Contractor shall monitor the progress of the Work for conformance with the
requirements of the construction schedules and shall promptly advise the City of any
delays or potential delays. The accepted construction schedules shall be updated to reflect
actual conditions as set forth in Paragraph 1.5.11.1, if requested, by either the City or
Owner's Designated Representative. In the event any schedule indicates any delays, the
Contractor shall propose an affirmative plan to correct the delay. In no event shall any
schedule constitute an adjustment in the Contract Time, any Milestone Date or the
Contract Sum unless any such adjustment is agreed to by the City and authorized pursuant
to Change Order.
1.5.12 Documents and Samples at the Site.
1.5.12.1 The Contractor shall maintain at the site for the City one record
copy of the Permit Drawings, Specifications, Addenda, Change Orders, As Built Mark-ups
and other Modifications, in good order and marked currently to record field changes
and selections made during construction, and one record copy of approved Shop
Drawings, Product Data, Samples and similar required submittals. These shall be available
to the Owner's Designated Representative and shall be delivered to the Owner's
Designated Representative for submittal to the City upon completion of the Work.
1.5.13 Shop Drawings,Product Data and Samples.
1.5.13.1 Shop Drawings are drawings, diagrams, schedules and other
data specially prepared for the Work by the Contractor or a Subcontractor, Sub-
subcontractor,manufacturer, supplier or distributor to illustrate some portion of the Work.
1.5.13.2 Product Data are illustrations, standard schedules,
performance charts, instructions, brochures, diagrams and other information furnished by
the Contractor to illustrate materials or equipment for some portion of the Work.
1.5.13.3 Samples are physical examples which illustrate materials,
equipment or workmanship and establish standards by which the Work will be judged.
1.5.13.4 Shop Drawings, Product Data, Samples and similar submittals
are not Contract Documents. The purpose of their submittal is to demonstrate for those
portions of the Work for which submittals are required by the Contract Documents the way
by which the Contractor proposes to conform to the information given and the design
concept expressed in the Contract Documents. Review by the Design Engineer is subject
to the limitations of Paragraph 1.6.2.7. Informational submittals upon which the Design
Engineer is not expected to take responsive action may be so identified in the Contract
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Documents. Submittals which are not required by the Contract Documents may be
returned by the Design Engineer without action.
1.5.13.5 The Contractor shall review for compliance with the Contract
Documents, approve and submit to the Owner's Designated Representative Shop
Drawings, Product Data, Samples and similar submittals required by the Contract
Documents with reasonable promptness and in such sequence as to cause no delay in the
Work or in the activities of the City or of separate contractors. Submittals which are not
marked as reviewed for compliance with the Contract Documents and approved by the
Contractor may be returned by the Design Engineer without action.
1.5.13.6 By approving and submitting Shop Drawings, Product Data,
Samples and similar submittals, the Contractor represents that the Contractor has
determined and verified materials, field measurements and field construction criteria related
thereto, or will do so, and has checked and coordinated the information contained within
such submittals with the requirements of the Work and of the Contract Documents. If, in
the opinion of the Design Engineer, the shop drawings indicate a lack of study and the
review by the Contractor is incomplete, or indicate an inadequate understanding of the
Work covered by the shop drawings, prior to submittal to the Owner's Designated
Representative, the shop drawings will be returned, unchecked, to the Contractor for
correction of any/all of these deficiencies for subsequent resubmittal.
1.5.13.7 The Contractor shall perform no portion of the Work for which
the Contract Documents require submittal and review of Shop Drawings, Product Data,
Samples or similar submittals until the respective submittal has been approved by the
Design Engineer.
1.5.13.8 The Work shall be in accordance with approved submittals
except that the Contractor shall not be relieved of responsibility for deviations from
requirements of the Contract Documents by the Design Engineer's approval of Shop
Drawings, Product Data, Samples or similar submittals unless the Contractor has
specifically informed the Owner's Designated Representative and/or Design Engineer in
writing of such deviation at the time of submittal and (1) the Design Engineer has given
written approval to the specific deviation as a minor change in the Work, or (2) a
Change Order or Construction Change Directive has been issued authorizing the deviation.
The Contractor shall not be relieved of responsibility for errors or omissions in Shop
Drawings, Product Data, Samples or similar submittals by the Design Engineer's approval
thereof.
1.5.13.9 The Contractor shall direct specific attention, in writing or on
resubmitted Shop Drawings, Product Data, Samples or similar submittals,to revisions other
than those requested by the Design Engineer on previous submittals. In the absence of such
written notice the Design Engineer's approval of a resubmission shall not apply to such
revisions.
1.5.13.10 The Contractor shall not be required to provide professional
services which constitute the practice of Design Engineer or engineering unless such
services are specifically required by the Contract Documents for a portion of the Work
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or unless the Contractor needs to provide such services in order to carry out the
Contractor's responsibilities for construction means, methods, techniques, sequences
and procedures. The Contractor shall not be required to provide professional services
in violation of applicable law. If professional design services or certifications by a
design professional related to systems, materials or equipment are specifically required of
the Contractor by the Contract Documents, the City and the Design Engineer will
specify all performance and design criteria that such services must satisfy. The
Contractor shall cause such services or certifications to be provided by a properly
licensed design professional, whose signature and seal shall appear on all drawings,
calculations, specifications, certifications, Shop Drawings and other submittals prepared
by such professional. Shop Drawings and other submittals related to the Work designed
or certified by such professional, if prepared by others, shall bear such professional's
written approval when submitted to the Owner's Designated Representative. The City,
Owner's Designated Representative, and the Design Engineer shall be entitled to rely
upon the adequacy, accuracy and completeness of the services, certifications or
approvals performed by such design professionals, provided the City and Design
Engineer have specified to the Contractor all performance and design criteria that such
services must satisfy. Pursuant to this Paragraph 1.5.13.10, the Design Engineer will
review, approve or take other appropriate action on submittals only for the limited purpose
of checking for conformance with information given and the design concept expressed in
the Contract Documents. The Contractor shall not be responsible for the adequacy of the
performance or design criteria required by the Contract Documents.
1.5.13.11 Adequate copies of Shop Drawings for Design Engineer,
structural, mechanical and electrical work shall be submitted to the Owner's Designated
Representative for review in the order of scheduled and upcoming work.
1.5.13.12 The Contractor shall submit complete Drawings, Data and
Samples to the Owner's Designated Representative at least thirty (30) days prior to the
date the Contractor needs the reviewed submittals returned. The Contractor shall be
prepared to submit color samples on any key items within sixty(60) days of the execution
of the Contract. Once samples of all key items are received, the Owner's Designated
Representative will finalize color selections.
1.5.13.13 The Contractor shall submit the number of copies of Product
Data and Samples which the Contractor and its Subcontractor(s) need for their use.
Where Shop Drawings are involved, the Contractor shall submit one (1) high quality
reproducible transparency and one (1) opaque print of the Shop Drawings for the Owner's
Designated Representative. The reproducible transparency will be marked by the
Design Engineer and/or its consultants. After final review and correction of the submittal,
Contractor shall send one (1) corrected set to the Design Engineer and one (1) to each
of the Design Engineer's consultants involved with the particular section of Work.
1.5.14 Use of Site.
1.5.14.1 The Contractor shall confine operations at the site to areas
permitted by law, ordinances, permits and the Contract Documents and shall not
unreasonably encumber the site with materials or equipment.
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1.5.14.2 The Contractor's access to the site, parking, field office
location,material and equipment storage,and confinement of said areas shall be coordinated
with, and approved by the City prior to the Contractor's mobilization on the site. Once
agreed upon, the Contractor shall not adjust or increase any of the above areas without prior
consent by the Owner.
1.5.15 Cutting and Patching.
1.5.15.1 The Contractor shall be responsible for cutting, fitting or
patching required to complete the Work or to make its parts fit together properly.
1.5.15.2 The Contractor shall not damage or endanger a portion of the
Work or fully or partially completed construction of the City or separate contractors by
cutting, patching or otherwise altering such construction, or by excavation. The Contractor
shall not cut or otherwise alter such construction by the City or a separate contractor except
with written consent of the City and of such separate contractor; such consent shall not be
unreasonably withheld. The Contractor shall not unreasonably withhold from the City or a
separate contractor the Contractor's consent to cutting or otherwise altering the Work. Any
such alteration involving cutting or removal of previously installed work shall be approved
in writing by the Contractor and the Owner's Designated Representative and/or Design
Engineer prior to initiation of the alteration.
1.5.16 Cleaning Up.
1.5.16.1 The Contractor shall keep the premises and surrounding area
free from accumulation of waste materials or rubbish caused by operations under the
Contract. At completion of the Work, the Contractor shall remove from and about the
Project waste materials, rubbish, the Contractor's tools, construction equipment, machinery
and surplus materials. The Contractor shall be responsible for protection of the Work and
shall repair or replace damaged work at Substantial Completion of the Work. The
Contractor shall remove all temporary protections at the completion of the Work.
1.5.16.2 If the Contractor fails to clean up as provided in the Contract
Documents,the City may do so and the cost thereof shall be charged to the Contractor.
1.5.16.3 Prior to the Owner's Designated Representative and Design
Engineer's inspection for Substantial Completion, the Contractor shall: clean exterior
surfaces exposed to view; remove temporary labels, stains, and foreign substances;
polish transparent and glossy surfaces; clean equipment and fixtures to a sanitary
condition; clean roofs; clean the Project site; sweep paved areas and rake clean other
surfaces; and remove trash and surplus materials from the Project site.
1.5.17 Access to Work.
1.5.17.1 The Contractor shall provide the City, its contractors,
vendors or employees and Owner's Designated Representative access to the Work in
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preparation and progress wherever located. Contractor may impose such safety"rules and
regulations"on these entities as are imposed on its own sub-contractors, vendor and
employees but shall not require undue or burdensome requirements that Contractor's own
sub-contractors,vendors or employees are not also subject to.
1.5.18 Royalties, Patents and Copyrights.
1.5.18.1 The Contractor shall pay all royalties and license fees. The
Contractor shall defend suits or claims for infringement of copyrights and patent rights and
shall hold the City, Owner's Designated Representative, and Design Engineer harmless
from loss on account thereof, but shall not be responsible for such defense or loss
when a particular design, process or product of a particular manufacturer or
manufacturers is required by the Contract Documents or where the copyright violations
are contained in Drawings, Specifications or other documents prepared by the City or
Design Engineer. However, if the Contractor has reason to believe that the required
design, process or product is an infringement of a copyright or a patent, the
Contractor shall be responsible for such loss unless such information is promptly furnished
to the Owner's Designated Representative.
1.5.19 INDEMNIFICATION AND RELEASE.
1.5.19.1 CONTRACTOR SHALL PROTECT, DEFEND, HOLD
HARMLESS AND INDEMNIFY THE CITY FROM ANY AND ALL CLAIMS,
DEMANDS, EXPENSES,LIABILITY OR CAUSES OF ACTION FOR INJURY TO
ANY PERSON,INCLUDING DEATH,AND FOR DAMAGE TO ANY PROPERTY,
TANGIBLE OR INTANGIBLE, OR FOR ANY BREACH OF CONTRACT
ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THE WORK
DONE BY ANY PERSON UNDER THIS AGREEMENT. IT IS THE INTENT OF
THE PARTIES THAT THIS PROVISION SHALL EXTEND TO, AND INCLUDE,
ANY AND ALL CLAIMS, CAUSES OF ACTION OR LIABILITY CAUSED BY
THE CONCURRENT, JOINT AND/OR CONTRIBUTORY NEGLIGENCE OF
THE CITY, AN ALLEGED BREACH OF AN EXPRESS OR IMPLIED
WARRANTY BY THE CITY OR WHICH ARISES OUT OF ANY THEORY OF
STRICT OR PRODUCTS LIABILITY.
1.5.19.2 The indemnifications contained in Paragraph 1.5.19.1. shall
include but not be limited to the following specific instances:
(a) The City is damaged due to the act, omission, mistake,
fault or default of the Contractor.
(b) In the event of any claims for payment for goods or
services brought by any material suppliers, mechanics, laborers, or other
subcontractors.
(c) In the event of any and all injuries to or claims of
adjacent property owners caused by the Contractor,its agents,employees, and
representatives.
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(d) In the event of any damage to the floor,walls,etc.,caused
by the Contractor's personnel or equipment during installation.
(e) The removal of all debris related to the Work.
(f) The acts and omissions of the subcontractors.
(g) The Contractor's failure to comply with applicable
federal,state,or local regulations,that touch upon or concern the maintenance
of a safe and protected working environment and the safe use and operation
of machinery and equipment in that working environment, no matter where
fault or responsibility lies.
1.5.19.3 The indemnification obligations of the Contractor under this
Paragraph shall not extend to include the liability of any professional engineer, the Design
Engineer, their consultants, and agents or employees of any of them arising out of(1) the
preparation or approval of maps, drawings, opinions, reports, surveys, Change orders,
designs or specifications, or (2) the giving of or the failure to give directions or
instructions by the professional engineer, the Design Engineer, their consultants, and
agents and employees of any of them, provided such giving or failure to give is the
primary cause of the injury or damage.
1.5.19.4 It is agreed with respect to any legal limitations now or
hereafter in effect and affecting the validity or enforceability of the indemnification
obligation under Paragraph 1.5.19.1., such legal limitations are made a part of the
indemnification obligation and shall operate to amend the indemnification obligation to the
minimum extent necessary to bring the provision into conformity with the requirements of
such limitations, and as so modified, the indemnification obligation shall continue in full
force and effect.
1.5.19.5 Contractor's indemnification obligations hereunder shall
survive termination, completion, abandonment and final payment.
1.5.20 Reproducible Record Drawings.
1.5.20.1 Required as part of Final Completion of the Project, the
Contractor shall submit one (1) complete set of drawings with all changes made during
construction, including concealed mechanical, electrical, and plumbing items
1.6 Administration of the Contract.
1.6.1 Design Engineer.
1.6.1.1 The Design Engineer is the person lawfully licensed to
practice Design Engineer or an entity lawfully practicing Design Engineer identified as
such in the Agreement and is referred to throughout the Contract Documents as if
singular in number. The term "Design Engineer" means the Design Engineer or the
Design Engineer's authorized representative or such successor Design Engineer as City
21
may appoint by written notice to Contractor from time to time.
1.6.1.2 City shall notify Contractor when the duties, responsibilities
or limitations of authority of the Design Engineer have been modified.
1.6.1.3 If the employment of the Design Engineer is terminated, the
City may elect to appoint a replacement Design Engineer, or at its option, elect to complete
the Project using another consultant or representative to perform the balance of the Design
Engineer's functions on the Work.
1.6.1.4 Except as herein expressly provided, the Contractor shall not
be relieved of its obligation to perform the Work in strict accordance with the Contract
Documents by the activities or duties of the Design Engineer.
1.6.1.5 Certain portions of the administration of the Contract will be
performed by the Design Engineer. The Design Engineer shall not have the authority to
act on behalf of the City unless such authority is expressly granted in the Contract
Documents, nor shall such authority be implied from any act or representation of the
Design Engineer. The City is free to elect to have some of the administration duties set out
for the Design Engineer to perform under the Contract Documents performed by a
construction manager or by employees of the City.
1.6.1.6 The Design Engineer, as a representative of the City, will visit
the site at intervals appropriate to the stage of the Contractor's operations (1) to become
generally familiar with and to keep the City informed about the progress and quality of the
portion of the Work completed, (2) to endeavor to guard the City against defects and
deficiencies in the Work, and (3) to determine in general if the Work is being
performed in a manner indicating that the Work, when fully completed, will be in
accordance with the Contract Documents. However, the Design Engineer will not be
required to make exhaustive or continuous on-site inspections to check the quality or
quantity of the Work. The Design Engineer will neither have control over or charge of,
nor be responsible for, the construction means, methods, techniques, sequences or
procedures, or for the safety precautions and programs in connection with the Work,since
these are solely the Contractor's rights and responsibilities under the Contract Documents,
except as provided in Paragraph 1.5.5.1. In no event shall City or any other party have
control over, be in charge of, or be responsible for construction means, methods,
techniques, sequences, procedures, or for safety precautions and programs in connection
with the Work, since these are solely Contractor's responsibilities. City will not be
responsible for the Contractor's failure to carry out the Work in accordance with the
Contract Documents. City will not have control over, be in charge of, and will not be
responsible for the acts or omissions of Contractor, Subcontractors, or their agents or
employees, or of any other persons performing portions of the Work.
1.6.1.7 The Design Engineer will not be responsible for the
Contractor's failure to perform the Work in accordance with the requirements of the Contract
Documents. The Design Engineer will not have control over or charge of and will not be
responsible for acts or omissions of the Contractor, Subcontractors, or their agents or
22
employees, or any other persons or entities performing portions of the Work.
1.6.1.8 The Design Engineer will review and approve or take
other appropriate action upon the Contractor's submittals such as Shop Drawings, Product
Data and Samples, but only for the limited purpose of checking for conformance with
information given and the design concept expressed in the Contract Documents. The
Design Engineer's action will be taken with such reasonable promptness as to cause no
delay in the Work or in the activities of the City, Contractor or separate contractors,
while allowing sufficient time in the Design Engineer's professional judgment to permit
adequate review. Review of such submittals is not conducted for the purpose of
determining the accuracy and completeness of other details such as dimensions and
quantities, or for substantiating instructions for installation or performance of equipment
or systems, all of which remain the responsibility of the Contractor as required by the
Contract Documents. The Design Engineer's review of the Contractor's submittals shall
not relieve the Contractor of its obligations. The Design Engineer's review shall not
constitute approval of safety precautions or, unless otherwise specifically stated by the
Design Engineer, of any construction means, methods, techniques, sequences or
procedures. The Design Engineer's approval of a specific item shall not indicate
approval of an assembly of which the item is a component.
1.6.1.9 Interpretations and decisions of the Design Engineer will be
consistent with the intent of and reasonably inferable from the Contract Documents and will
be in writing or in the form of drawings.
1.6.1.10 The Design Engineer's decisions on matters relating to all
Work will be final if consistent with the intent expressed in the Contract Documents.
1.6.2 Owner's Designated Representative's Administration of the Contract.
1.6.2.1 The Owner's Designated Representative will not be
responsible for the Contractor's failure to perform the Work in accordance with the
requirements of the Contract Documents. The Owner's Designated Representative
Engineer will not have control over or charge of and will not be responsible for acts or
omissions of the Contractor, Subcontractors, or their agents or employees, or any other
persons or entities performing portions of the Work.
1.6.2.2 Communications Facilitating Contract Administration.
Except as otherwise provided in the Contract Documents or when direct communications
have been specially authorized,the City and Contractor shall endeavor to communicate with
each other through the Owner's Designated Representative about matters arising out of
or relating to the Contract. Communications by and with the Design Engineer's
consultants shall be through the Owner's Designated Representative. Communications by
and with Subcontractors and material suppliers shall be through the Contractor.
Communications by and with separate contractors shall be through the City.
1.6.2.3 Based on the Owner's Designated Representative's
evaluations of the Contractor's Applications for Payment, the Owner's Designated
23
Representative will review and certify the amounts due the Contractor and will issue
Certificates for Payment in such amounts.
1.6.2.4 The Owner's Designated Representative will have authority
to reject Work that does not conform to the Contract Documents. Whenever the
Owner's Designated Representative considers it necessary or advisable for
implementation of the intent of the Contract Documents, the Owner's Designated
Representative will have authority to require additional inspection or testing of the
Work in accordance with Paragraphs 1.15.5.2. and 1.15.5.3., whether or not such Work
is fabricated, installed or completed. However, neither this authority of the Owner's
Designated Representative nor a decision made reasonably and in good faith either to
exercise or not to exercise such authority shall give rise to a duty or responsibility of the
Owner's Designated Representative to the Contractor, Subcontractors, material and
equipment suppliers, their agents or employees, or other persons or entities performing
portions of the Work.
1.6.2.5 The Owner's Designated Representative will prepare
Change Orders and Construction Change Directives, and may authorize minor changes in
the Work as provided in Paragraph 1.9.4.
1.6.2.6 The Owner's Designated Representative will conduct
inspections to determine the date or dates of Substantial Completion and the date of
Final Completion, will receive and forward to the City, for the City's review and
records, written warranties and related documents required by the Contract and
assembled by the Contractor, and will issue a final Certificate for Payment upon
compliance with the requirements of the Contract Documents.
1.6.2.7 If the City and Owner's Designated Representative agree, the
Owner's Designated Representative will provide one or more project representatives to
assist in carrying out the Owner's Designated Representative's responsibilities at the
site. The duties, responsibilities and limitations of authority of such project
representatives shall be as set forth in an exhibit to be incorporated in the Contract
Documents.
1.6.2.8 The Owner's Designated Representative will interpret and
decide matters concerning performance under, and requirements of, the Contract
Documents on written request of either the City or Contractor. The Owner's Designated
Representative's response to such requests will be made in writing within any time
limits agreed upon or otherwise with reasonable promptness. If no agreement is made
concerning the time within which interpretations required of the Owner's Designated
Representative shall be furnished in compliance with this Paragraph 1.6.2.8,then delay shall
not be recognized on account of failure by the Owner's Designated Representative to
furnish such interpretations until thirty(30) days after written request is made for them.
1.6.2.9 The Owner's Designated Representative's decisions on
matters relating to all Work will be final if consistent with the intent expressed in the
Contract Documents.
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1.6.3 Claims and Disputes.
1.6.3.1 Definition. A Claim is any demand or assertion by the
Contractor that it should be paid more money than the Contract Sum or provided more time
than the Contract Time, as adjusted under the Change Order provisions herein, by the
City because of action or inaction on the part of City, Design Engineer, or any party for
whom City is responsible, or any party with whom City has separately contracted for
other portions of the Project, including but not limited to any demand or assertion that
Contractor's performance has been delayed, interrupted or interfered with, that
Contractor's performance has been accelerated, constructively accelerated, or
suspended, that Contractor's performance has been wrongfully terminated, that the
Contract Documents have been misinterpreted, that here has been a failure of
payment,that Contractor has encountered concealed or unknown conditions,that Contractor
has encountered hazardous materials, that there are problems with the Contract Documents,
or the timing of Design Engineer approvals or decisions, that action of the City have
been intentionally wrongful or deceptive in any way to the Work, that the amount of
time or money granted in a Construction Change Directive is inadequate, that an item
treated as a minor change in the Work should have been treated as a Change Order, that a
time extension granted was inadequate, or that Contractor is entitled to any other relief, on
any legal theory, related to the Work and the Contract. Nothing contained in this
subparagraph shall be construed as creating any Contractor right to make a claim, where
no such right otherwise exists.
1.6.3.2 Notice Requirement: Within fifteen (1 5) calendar days of
the first occurrence of an event that Contractor has any reason to believe might result in a
Claim, or within fifteen (15) calendar days of Contractor's discovery of the first
occurrence of the event that Contractor has any reason to believe might result in a Claim, if
the first occurrence of the event was willfully hidden from the Contractor, the Contractor
shall file a written document clearly captioned "Notice of Claim" with City and Owner's
Designated Representative. The notice shall clearly set out the specific matter of
complaint, and the impact of damages which may occur or have occurred as a result
thereof, to the extent the impact or damages can be assessed at the time of the notice. If
the impact or damages cannot be assessed as of the date of the notice, the notice shall be
amended at the earliest date that is reasonably possible.
1.6.3.2.1 Any Claim or portion of a Claim that has not
been made the specific subject of a notice strictly in accordance with the
requirements of this Paragraph shall be waived. It is imperative that City have
timely, specific notice of any subject, the impact of which City may be in a
position to mitigate.
1.6.3.2.2 No course of conduct or dealings between
the parties, nor implied acceptance of alteration or additions to the Work or
changes to the Contract schedule, shall be the basis for any claim for an increase
in the Contract Sum or change in the Contract Time.
1.6.3.3 Claims Handling During Construction: After receipt of a
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Notice of Claim, the City may elect to refer the matter to the Owner's Designated
Representative and/or Design Engineer or another party for review. Contractor will
attend meetings called to review and discuss the Claim and mitigation of the
problem, and shall furnish any reasonable factual backup of the Claim requested. The
City may also elect to defer consideration of the Claim until the Work is completed, in
which case the same review options shall be available to the City at the completion of
the Work. At any stage, the City is entitled to refer a Claim to mediation under the
Construction Industry Mediation Rules of the American Arbitration Association, and if
this referral is made, Contractor will take part in the mediation process. The filing,
mediation or rejection of a Claim does not entitle Contractor to stop performance of the
Work. The Contractor shall proceed diligently with performance of the Work during the
pendency of any claim, except termination under City's direction to stop the Work.
Agreements reached in mediation shall be enforceable as settlement agreements in any court
having jurisdiction thereof. The parties shall share the Mediator's fee and any filing fees
equally, and the Mediation shall be held in Brazoria County, Texas. If a Claim is resolved
against Contractor, and if mediation is unsuccessful, then Contractor may pursue the claim
through litigation in a court of appropriate jurisdiction.
1.6.3.4 Claims Handling Following Construction: The acceptance of
final payment shall constitute a waiver of Claims by the Contractor which have not
previously been identified in a timely notice of Claim and specifically reserved in the final
Application for Payment.
1.6.3.5 Claims for Concealed or Unknown Conditions. Only if
conditions are encountered at the site which are (1) subsurface or otherwise concealed
physical conditions which differ materially from those indicated in the Contract Documents
or(2)unknown physical conditions of an unusual nature,which differ materially from those
ordinarily found to exist and generally recognized as inherent in construction activities of
the character provided for in the Contract Documents, then Contractor shall be entitled to
make a Claim if it can satisfy all of the other requirements of Paragraph 1.6.
1.6.3.6 Claims for Additional Cost. If the Contractor wishes to make
Claim for an increase in the Contract Sum, written notice and prior approval of City must
occur before Contractor may execute the Work. Prior notice is not required for Claims
relating to an emergency endangering life or property arising under Paragraph 1.12.4.
1.6.3.7 Calculating Claim Amount: In calculating the amount of any
Claim, the following standards will apply:
(a) No indirect or consequential damages will be allowed.
(b) All damages must be directly and specifically shown to be
caused by a proven wrong. No recovery shall be based on a comparison of planned
expenditures to total actual expenditures, or on estimated losses of labor efficiency,
or on a comparison of planned man loading to actual man loading, or any
other analysis that is used to show damages indirectly.
(c) Damages are limited to extra costs specifically shown to
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have been directly caused by a proven wrong.
(d) The maximum daily limit on any recovery for delay shall be
the amount established by the Contractor for job overhead costs, defined in the
Schedule of Values, divided by the total number of calendar days of Contract Time
called for in the original Contract. Absent an overhead amount in the Schedule of
Values, the amount estimated by the Contractor for job overhead costs shall be
used.
1.7 Subcontractors.
1.7.1 Definitions.
1.7.1.1 A Subcontractor is a person or entity who has a direct contract
with the Contractor to perform a portion of the Work at the site. The term "Subcontractor"
is referred to throughout the Contract Documents as if singular in number and means a
Subcontractor or an authorized representative of the Subcontractor. The term
"Subcontractor" does not include a separate contractor or subcontractors of a separate
contractor.
1.7.1.2 A Sub-subcontractor is a person or entity who has a direct or
indirect contract with a Subcontractor to perform a portion of the Work at the site. The term
"Sub-subcontractor" is referred to throughout the Contract Documents as if singular in
number and means a Sub-subcontractor or an authorized representative of the Sub-
subcontractor.
1.7.2 Award of Subcontracts and Other Contracts for Portions of the Work.
1.7.2.1 Unless otherwise stated in the Contract Documents or the
bidding requirements, the Contractor, as soon as practicable after award of the Contract,
shall furnish in writing to the City, through the Owner's Designated Representative, the
names of persons or entities (including those who are to furnish labor, materials or
equipment fabricated to a special design) proposed for each principal portion of the
Work. The Owner's Designated Representative will promptly reply to the Contractor in
writing stating whether or not the City or the Owner's Designated Representative, after due
investigation, has reasonable objection to any such proposed person or entity. Failure
of the City or Owner's Designated Representative to reply promptly shall constitute
notice of no reasonable objection.
1.7.2.2 The Contractor shall not contract with a proposed person or
entity to whom the City or Owner's Designated Representative has made reasonable
and timely objection. The Contractor shall not be required to contract with anyone to
whom the Contractor has made reasonable objection.
1.7.2.3 If the City or Owner's Designated Representative has
reasonable objection to a person or entity proposed by the Contractor, the Contractor shall
propose another to whom the City or Owner's Designated Representative has no
reasonable objection. If the proposed but rejected Subcontractor was reasonably capable
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of performing the Work, the Contract Sum and Contract Time shall be increased or
decreased by the difference, if any, occasioned by such change, and an appropriate
Change Order shall be issued before commencement of the substitute Subcontractor's
Work. However, no increase in the Contract Sum or Contract Time shall be allowed for
such change unless the Contractor has acted promptly and responsively in submitting
names as required.
1.7.2.4 The Contractor shall not change a Subcontractor, person or
entity previously selected if the City or Owner's Designated Representative makes
reasonable objection to such substitute.
1.7.2.5 The Contractor shall submit the list of proposed
Subcontractors on a form provided by the Owner's Designated Representative. The
Contractor may obtain blank copies from the Owner's Designated Representative.
1.7.2.6 The Contractor and Subcontractors are required to visit the site
and completely familiarize themselves with the existing conditions prior to the submission
of Proposal(s). No additional increase in the Contract amount will be provided when
existing or known conditions require a certain amount of work to comply with the intent of
the Contract Documents.
1.7.3 Sub-contractual Relations.
1.7.3.1 By appropriate agreement, written where legally required for
validity, the Contractor shall require each Subcontractor, to the extent of the Work to be
performed by the Subcontractor, to be bound to the Contractor by terms of the Contract
Documents, and to assume toward the Contractor all the obligations and responsibilities,
including the responsibility for safety of the Subcontractor's Work, which the Contractor,
by these Documents, assumes toward the City, Owner's Designated Representative, and
Design Engineer. Each subcontract agreement shall preserve and protect the rights of the
City, Owner's Designated Representative, and Design Engineer under the Contract
Documents
with respect to the Work to be performed by the Subcontractor so that subcontracting thereof
will not prejudice such rights. Where appropriate, the Contractor shall require each
Subcontractor to enter into similar agreements with Sub-subcontractors. The Contractor
shall make available to each proposed Subcontractor, prior to the execution of the
subcontract agreement, copies of the Contract Documents to which the Subcontractor will
be bound, and, upon written request of the Subcontractor, identify to the Subcontractor
terms and conditions of the proposed subcontract agreement which may be at variance with
the Contract Documents. Subcontractors will similarly make copies of applicable portions
of such documents available to their respective proposed Sub-subcontractors.
1.7.4 Contingent Assignment Of Subcontracts.
1.7.4.1 Each subcontract agreement for a portion of the Work is
assigned by the Contractor to the City provided that:
(a) assignment is effective only after termination of the Contract
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by the City for cause pursuant to Paragraph 1.16.2. and only for those subcontract
agreements which the City accepts by notifying the Subcontractor and Contractor
in writing; and
(b) assignment is subject to the prior rights of the surety, if any,
obligated under bond relating to the Contract.
1.7.4.2 City shall only be responsible for compensating Subcontractor
for Work done or materials furnished after the date City gives written notice of its
acceptance of the subcontract agreement.
1.7.4.3 Each Subcontract and assignment shall provide that the City
shall only be responsible to the Subcontractor for those services and materials furnished by
the Subcontractor subsequent to the City's exercise of any rights under this contingent
assignment.
1.7.5 Responsibility.
1.7.5.1 Contractor shall be fully responsible for the performance of its
Subcontractor, including those selected or approved by the City.
1.8 Construction by Owner or by Separate Contractors.
1.8.1 Owner's Right to Perform Construction and to Award Separate Contracts.
1.8.1.1 The City reserves the right to perform other construction work,
maintenance and repair work near or adjacent to the site during the time period of the Work.
Owner may perform other Work with separate contractors. City shall have access to the site
at all times. Any contractor performing work on the site whether for the project or for
other projects that require access through this site shall maintain the same insurance and
indemnity limits as those of the Contractor.
1.8.1.2 When separate contracts are awarded for different portions of
the Project or other construction or operations on the site, the term "Contractor" in the
Contract Documents in each case shall mean the Contractor who executes each separate
Owner-Contractor Agreement.
1.8.2 Mutual Responsibility.
1.8.2.1 The Contractor shall afford the City and separate contractors
reasonable opportunity for introduction and storage of their materials and equipment and
performance of their activities, and shall connect and coordinate the Contractor's
construction and operations with theirs as required by the Contract Documents.
1.8.2.2 If part of the Contractor's Work depends for proper execution
or results upon construction or operations by the City or a separate contractor,the Contractor
shall, prior to proceeding with that portion of the Work, promptly report to the Owner's
Designated Representative discrepancies or defects in such other construction that would
render it unsuitable for such proper execution and results. Failure of the Contractor so
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to report shall constitute an acknowledgment that the City's or separate contractor's
completed or partially completed construction is fit and proper to receive the Contractor's
Work,except as to defects not then reasonably discoverable.
1.8.2.3 The City shall be reimbursed by the Contractor for costs
incurred by the City which are payable to a separate contractor because of delays,
improperly timed activities or defective construction of the Contractor.
1.8.2.4 The Contractor shall promptly remedy damage wrongfully
caused by the Contractor to completed or partially completed construction or to property of
the City or separate contractors as provided in Paragraph 1.12.2.5.
1.8.2.5 The City and each separate contractor shall have the same
responsibilities for cutting and patching as are described for the Contractor in Paragraph
1.5.15.
1.8.3 Owner's Right to Clean Up.
1.8.3.1 If a dispute arises among the Contractor, separate contractors
and the City as to the responsibility under their respective contracts for maintaining the
premises and surrounding area free from waste materials and rubbish, the City may clean
up and the Owner's Designated Representative will allocate the cost among those
responsible.
1.9 Chances in the Work.
1.9.1 General.
Changes in the Work may be accomplished after execution
of the Contract, and without invalidating the Contract, by Change Order,
Construction Change Directive or order for a minor change in the Work. The
Contract Sum and/or Contract Time may be increased for changes in the Work if
the provisions of this Paragraph have been met.
1.9.1.1.1 No change in the Contract Sum and/or Contract
Time will be allowed for a change in the Work unless prior to performing the
changed Work, the Contractor has provided the City in writing a proposal for
any change in price and/or change in Contract Time caused by the change in
Work, and a Change Order is subsequently executed. A field directive or field
order shall not be recognized as having any impact upon the Contract Sum or the
Contract Time, and Contractor shall have no Claim therefore, unless it shall,
prior to complying with the directive and in any event within fourteen (14)
calendar days of receiving the directive, submit a change proposal to the
City, and a Change Order is subsequently executed, or Contractor satisfies
the requirements of Paragraph 1.6.3. Contractor's proposal shall be subject to
City's acceptance and remain firm and irrevocable for a period of forty-five (45)
calendar days after receipt by City. Thereafter, Contractor reserves the right to
resubmit such change proposal upon different pricing and time of performance
terms.
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1.9.1.2 A Change Order shall be based upon agreement among the
City, Contractor and Owner's Designated Representative; a Construction Change Directive
requires agreement by the City and Owner's Designated Representative and may or may
not be agreed to by the Contractor; an order for a minor change in the Work may be issued
by the Owner's Designated Representative alone.
1.9.1.3 Changes in the Work shall be performed under applicable
provisions of the Contract Documents, and the Contractor shall proceed promptly, unless
otherwise provided in the Change Order, Construction Change Directive or order for a
minor change in the Work. Except as permitted in Paragraph 1.9.3.,a change in the Contract
Sum or the Contract Time shall be accomplished only by Change Order.
1.9.1.4 The Contractor, upon receipt of written notification by the
Owner's Designated Representative of a proposed item of change in the Work, shall
prepare as soon as possible a Change Proposal in such form or forms as directed by the
Owner's Designated Representative.
(a) Each separate Change Proposal shall be numbered
consecutively and shall include material costs, labor costs, fees, overhead and
profit. The Change Proposal shall specify all costs related to the proposed change
in the Work, including any disruption or impact on performance.
(b) The Subcontractor's itemized accounting shall be included
with the Change Proposal.
(c) If a Change Proposal is returned to the Contractor for
additional information or if the scope of the proposed change in the Work is
modified by additions, deletions or other revisions, the Contractor shall revise the
Change Proposal accordingly and resubmit the revised Change Proposal to the
Owner's Designated Representative.
(d) A revised Change Proposal shall bear the original Change
Proposal number suffixed by the letter "R" to designate a revision in the original
Change Proposal. If additional revisions to a revised Change Proposal are
necessary, each subsequent revision shall be identified by an appropriate numeral
suffix immediately following the"R"suffix.
(e) Upon written approval of a Change Proposal by the City,the
Owner's Designated Representative will prepare an appropriate Change
authorizing such change in Work.
(f) The Contractor shall request extensions of Contract Time
due to changes in the Work only at the time of submitting its Change Proposal.
Contractor's failure to do so shall represent a waiver of any right to request a
time extension.
1.9.2 Change Orders.
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1.9.2.1 A Change Order is a written instrument prepared by the
Owner's Designated Representative and signed by the City, Owner's Designated
Representative, Contractor and Design Engineer, stating their agreement upon all of the
following:
(a) change in the Work; and the amount of the adjustment, if
any, in the Contract Sum;
(b) the extent of the adjustment, if any, in the Contract Time.
1.9.2.2 Methods used in determining adjustments to the Contract Sum
may include those listed below:
(a) mutual acceptance of a lump sum properly itemized and
supported by sufficient substantiating data to permit evaluation;
(b) unit prices stated in Contract Documents or subsequently
agreed upon;
(c) cost shall be determined in a manner agreed upon by the
parties and a mutually acceptable fixed fee, or the percentage fee established at
Subparagraph 1.9.3.6., or
(d) as provided in Subparagraph 1.9.3.6.
1.9.2.3 Agreement on any Change Order shall constitute a final
settlement of all Claims by the Contractor directly or indirectly arising out of or relating to
the change in Work which is the subject of the Change Order, including, but not limited to,
all direct and indirect costs and impact costs associated with such change and any and all
adjustments to the Contract Sum and the Contract Time.
1.9.3 Construction Change Directives.
1.9.3.1 A Construction Change Directive is a written order prepared
by the Owner's Designated Representative and signed by the City and Owner's Designated
Representative, directing a change in the Work prior to agreement on adjustment, if any, in
the Contract Sum or Contract Time, or both. The City may by Construction Change
Directive, without invalidating the Contract, order changes in the Work within the general
scope of the Contract consisting of additions, deletions or other revisions, the Contract
Sum and Contract Time being adjusted accordingly.
1.9.3.2 A Construction Change Directive shall be used in the absence
of total agreement on the terms of a Change Order.
1.9.3.3 The Construction Change Directive shall include a unilateral
change in the Contract Sum and/or Contract Time reflecting the City's view of the
appropriate change in the Contract Sum and/or Contract Time for the change in Work
covered by the Construction Change Directive. Until agreement is reached by the City and
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Contractor on these issues, the changes in Contract Sum and Contract Time set out in the
Construction Change Directive shall be used for Schedule of Values, payment and
scheduling purposes.
1.9.3.4 Upon receipt of a Construction Change Directive, the
Contractor shall promptly proceed with the change in the Work involved and advise the
Owner's Designated Representative of the Contractor's agreement or disagreement with
the method, if any, provided in the Construction Change Directive for determining the
proposed adjustment in the Contract Sum or Contract Time.
1.9.3.5 A Construction Change Directive signed by the Contractor
indicates the agreement of the Contractor therewith, including adjustment in Contract Sum
and Contract Time or the method for determining them. Such agreement shall be effective
immediately and shall be recorded as a Change Order.
1.9.3.6 In the absence of an agreement between City and Contractor
on the proper change to the Contract Sum or Contract Time because of a change in the
Work, Contractor may treat the matter as a Claim under Paragraph 1.6.3. In such event,the
Contractor shall be entitled to recover only the amount by which the Cost of the Work has
been reasonably increased over the Cost of Work without the change in the Work,plus five
percent(5%).
1.9.3.7 Pending final determination of the cost of a Construction
Change Directive to the City, amounts not in dispute may be included in Applications for
Payment. The amount of credit to be allowed by the Contractor to the City for a deletion or
change which results in a net decrease in the Contract Sum shall be actual net cost as
confirmed by the Owner's Designated Representative. When both additions and credits
covering related Work or substitutions are involved in a change, the allowance for
overhead and profit shall be figured on the basis of net increase, if any, with respect to that
change.
1.9.4 Minor Changes in the Work.
1.9.4.1 The Owner's Designated Representative will have authority
to order minor changes in the Work not involving adjustment in the Contract Sum or
extension of the Contract Time and not inconsistent with the intent of the Contract
Documents. Such changes shall be effected by written order and shall be binding on the
City and Contractor. The Contractor shall carry out such written orders promptly.
1.9.5 Changes Funded By Allowances.
1.9.5.1 Allowances balances may be used to fund changes in the
Work. The Contractor will not be allowed an overhead and profit mark-up when changes
in the Work are funded by one of the Allowances.
1.10 Prosecution and Progress.
1.10.1 TIME AND ORDER OF COMPLETION. It is the meaning and intent of this
Contract, unless otherwise herein specifically provided, that the CONTRACTOR shall be
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allowed to prosecute his Work at such times and seasons, in such order of precedence, and
in such manner as shall be most conducive to economy of construction; provided, however,
that the order and the time of prosecution shall be such that the Work shall be Substantially
Completed as a whole and in part, in accordance with this Contract and the Contract Time;
provided, also, that when the OWNER is having other work done, either by contract or by
his own forces, the Owner's Designated Representative may direct the time and manner of
constructing the Work done under this Contract, so that conflict will be avoided and the
construction of the various works being done for the OWNER shall be harmonized, and the
CONTRACTOR shall fully cooperate and coordinate its Work with OWNER or such other
contractors.
1.10.1.1 The CONTRACTOR shall submit, an updated schedule with
every pay estimate for review by the Owner's Designated Representative, schedules
which shall show the order in which the CONTRACTOR proposes to carry on the
Work, with dates on which the CONTRACTOR will start the several parts of the
work, and estimated dates of completion of the several parts. Such schedules shall
show completion of the Work within the Contract Time, and/or shall show such
recovery efforts as CONTRACTOR intends to undertake in the event Substantial
Completion of the Work is delayed.
1.10.1.2 EXTENSION OF TIME. The CONTRACTOR agrees that he
has submitted his Bid Proposal in full recognition of the time required for the
completion of this Project, taking into consideration the average climatic range and
industrial conditions prevailing in this locality, and has considered the liquidated
damage provisions as hereinafter set forth, and that he shall not be entitled to, nor
will he request, an extension of time on this Contract, except when Substantial
Completion of the Work has been delayed solely by strikes, lockouts, fires, Acts of
God, or by any other cause which the Owner's Designated Representative shall
decide justifies the delay. The CONTRACTOR shall give the Owner's Designated
Representative prompt notice, in writing and within three (3) days of the start of
any such delay, of the cause of any such delay, and its estimated effect on the Work
and the schedule for completion of the Work. Upon receipt of a written request for
an extension of the Contract Time from the CONTRACTOR, supported by relevant
and all requested documentation, the Owner's Designated Representative shall
submit such written request, together with his written recommendation, to the
OWNER for consideration. If the delay is not attributable in whole or in part to
any act or omission of CONTRACTOR, its subcontractors or suppliers, and if the
OWNER determines that CONTRACTOR is entitled to an extension of time under
the terms of the Contract, the OWNER shall grant an extension of time for
Substantial Completion of the Work, sufficient to compensate for the delay, and
such extension of time shall be CONTRACTOR's sole and exclusive remedy,
except as may be otherwise provided herein. No extensions of Contract Time shall
be made for delays occurring prior to the Contractor's mobilization as defined in
the City's Specifications.
The Contract Time as defined in the Bid Proposal and other sections herein
incorporates 40 Rain Days per calendar year or an average of 3.33 days per
calendar month. The CONTRACTOR is required to keep record of all weather
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related delays and to submit the monthly count on each Pay Application. The
Owner's Representative shall review and sign off on this record as a part of the Pay
Application approval process every month. If, during preparation of the Balancing
Change Order,the status of the work progress requires an extension of the Contract
Time, Impact Days shall be added to the Completion Date equal to the total number
of Weather or Impact Days approved less the original 40 days resident in the
original Contract Time. The Addition of Weather or Impact Days will only alter
the Contract Time when added by Change Order. If the Work is completed prior to
the Completion Date, No Days will be added. The addition of Weather or Impact
Days shall be the CONTRACTOR's sole remedy for delays to the completion of
the Work and their addition to the Contract Time shall not affect the Contract Price
through any "per diem" adjustment to the General Conditions costs, Temporary
Facilities costs or any other costs associated with the extension of the Contract
Time.
1.10.1.3 HINDRANCES AND DELAYS. In executing the Contract,
the CONTRACTOR agrees that in undertaking to complete the Work within the
time herein fixed, he has taken into consideration and made allowances for all
interference, disruption, hindrances and delays incident to such Work, whether
growing out of delays in securing material, workmen or otherwise. No claim shall
be made by the CONTRACTOR for damages, loss, costs or expense resulting from
interference, disruption, hindrances or delays from any cause during the progress of
any portion of the Work embraced in this Contract, except where the Work is
unreasonably delayed by Owner is not attributable to any act or omission of
CONTRACTOR.
1.10.1.4 SUSPENSION OF WORK. OWNER may, without cause,
order the CONTRACTOR in writing to suspend the Work, in whole or in part, for
such period of time as OWNER may request. The Contract Price and/or Contract
Time shall be adjusted for any increase in the cost of or the time required for
performance of the Work caused by such suspension. No adjustment shall be made
to the extent performance was or would have been suspended by a cause for which
CONTRACTOR is responsible, or to the extent an adjustment is made or denied
under another provision of the Contract Documents.
1.10.1.5 CHANGE OF CONTRACT TIME: The Contract Time may
only be changed by a Change Order. Any claim for an adjustment of Contract
Time shall be based on written notice delivered by the party making such claim to
the other party and to the Owner's Designated Representative promptly, but in no
event later than ten (10) days after the event-giving rise to the claim. Notice of the
extent of the claim, along with supporting data, shall be delivered within thirty(30)
days of the occurrence and shall be accompanied by the claimant's written
representation that the adjustment claimed is the entire adjustment to which the
claimant has reason to believe it is entitled as a result of the occurrence of said
event. All claims for adjustment in Contract Time shall be determined by the
Owner's Designated Representative in accordance with the requirements of this
paragraph. Contractor shall submit, as a minimum,the following data:
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A. Information showing that the time requested is not
included in the existing Contract and in addition to the
Contract.
B. Information documenting that the number of days
requested is accurate for the event.
C. Revised, current construction schedule showing that
the time requested affects the project's critical path.
1.10.1.6 DELAYS BEYOND OWNER'S AND
CONTRACTOR'S CONTROL: Where CONTRACTOR is prevented from
completing any part of the Work within the Contract Time due to delays beyond
the control of the OWNER and the CONTRACTOR, including, but not limited to,
interference by utility owners or other contractors performing other work,
Contractor shall be entitled to an extension of the Contract Time in an amount
equal to the time lost. CONTRACTOR shall not be entitled to any increase in
Contract Price as a result of such delays. IN NO EVENT SHALL OWNER BE
LIABLE TO CONTRACTOR FOR DAMAGES ARISING OUT OF OR
RESULTING FROM (i) Delays caused by, or within the control of, the
CONTRACTOR, or (ii) Delays beyond the control of both parties including, but
not limited to, interference by utility owners or other contractors performing other
work, fires, floods, epidemics, abnormal weather conditions, acts of God, even if
such delays are due in part to the negligence, other fault, breach of contract or
warranty, violation of the Texas Deceptive Trade Act, or strict liability without
regard to fault of OWNER. An extension of Contract time shall be
CONTRACTOR's sole and exclusive remedy for any such delays. Delays
attributed to, and within the control of, a Subcontractor or Supplier shall be deemed
to be delays within the control of the CONTRACTOR.
1.11 Payments and Completion.
1.11.1 Contract Sum.
1.11.1.1 The Contract Sum is stated in the Agreement and,
including authorized adjustments, is the total amount payable by the City to
the Contractor for performance of the Work under the Contract Documents.
1.11.2 Schedule of Values.
1.11.2.1 Before the first Application for Payment, the
Contractor shall submit to the Owner's Designated Representative a Schedule of
Values fairly allocating the various portions of the Work, prepared in such form
and supported by such data to substantiate its accuracy as reasonably required
by the Owner's Designated Representative. Once approved by the Owner's
Designated Representative and updated for changes in the Work, the Schedule
of Values shall be used as a basis for reviewing the Contractor's Applications
for Payment and is not to be taken as evidence of market or other value. The
Schedule of Values shall not overvalue early job activities. The Contractor's Fee
36
shall be shown as a single separate item. The Schedule of Values shall follow the
trade divisions of the Specification so far as practicable.
In order to facilitate the review of Applications for Payment,the Schedule of
Values shall be submitted on forms approved by the Owner, and shall include the
following:
(a) Contractor's costs for Contractor's Fee, bonds and
insurance, mobilization, etc., shall be listed as individual line items.
(b) Contractor's costs for various construction items shall be
detailed. For example, concrete work shall be subdivided into footings, grade
beams, floor slabs, paving, etc. These subdivisions shall appear as individual line
items.
(c) On major subcontracts, such as mechanical, electrical and
plumbing, the Schedule of Values shall indicate line items and amounts in detail
(for example: underground, major equipment, fixtures, installation of fixtures, start
up, etc.).
(d) Costs for subcontract Work shall be listed without any
addition of Contractor's costs for overhead,profit or supervision.
(e) Where payment for stored materials may be requested prior
to installation,material and labor shall be listed as separate line items.
(f) Sample pages from an approved Schedule of Values are
included following this document.
1.11.3 Applications for Payment.
1.11.3.1 At the time specified in the Agreement, the Contractor shall
submit to the Owner's Designated Representative an itemized Application for Payment
for operations completed in accordance with the Schedule of Values. Such application
shall be notarized, if required, and supported by such data substantiating the Contractor's
right to payment as the City or Owner's Designated Representative may require, such as
copies of requisitions from Subcontractors and material suppliers, and reflecting
retainage if provided for in the Contract Documents. Unless otherwise agreed, the
Contractor shall submit requests for payment through the City's project management
software (ProTrak) using the APPLICATION AND CERTIFICATE FOR PAYMENT;
showing in detail the amounts requested, etc., as necessary. All blank spaces must be
completed and the signatures of the Contractor shall signify his attestation that said
Application for Payment is true, accurate and complete. By submitting its Application
for Payment, the Contractor certifies that the individual signing the application is
authorized to do so. Additionally, if the Contractor prepares its Application for Payment,
any supplemental supporting documentation should be provided and uploaded through the
ProTrak software. Applications for Payment may not include requests for payment for
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portions of the Work for which the Contractor does not intend to pay to a Subcontractor
or material supplier.
1.11.3.2 Unless otherwise provided in the Contract Documents,
payments shall be made on account of materials and equipment delivered and suitably stored
at the site for subsequent incorporation in the Work. If approved in advance by the City,
payment may similarly be made for materials and equipment suitably stored off the site at
a location agreed upon in writing. Payment for materials and equipment stored on or off the
site shall be conditioned upon compliance by the Contractor with procedures satisfactory to
the City to establish the City's title to such materials and equipment or otherwise protect the
City's interest, and shall include the costs of applicable insurance,storage and transportation
to the site for such materials and equipment stored off the site. Applications for
Payment shall separate references to any and all materials and/ or equipment that
require separate payment for materials stored but not installed as individual line
items. These items shall be specifically identified in the Original Schedule of
Values as well as where this material or equipment will be incorporated into the
Work.
1.11.3.3 Upon payment by the City of the invoiced cost, title to all
such materials and equipment shall irrevocably pass to the City. The Contractor warrants
that title to all materials and equipment covered by an Application for Payment will
pass to City upon the receipt of payment by the Contractor. Such title shall be free and
clear of all liens, claims, security interests or encumbrances. No work, materials or
equipment covered by an Application for Payment shall be subject to an agreement under
which an interest is retained or encumbrance is attached by the seller, the Contractor, or
other party.
1.11.3.4 The Contractor warrants that title to all Work covered by an
Application for Payment will pass to the City no later than the time of payment. The
Contractor further warrants that upon submittal of an Application for Payment all Work for
which Certificates for Payment have been previously issued and payments received from
the City shall,to the best of the Contractor's knowledge, information and belief,be free and
clear of liens, claims, security interests or encumbrances in favor of the Contractor,
Subcontractors,material suppliers,or other persons or entities making a claim by reason of
having provided labor,materials and equipment relating to the Work. Each Application for
Payment shall be accompanied by a signed and notarized Partial Release of Lien/All Bills
Paid affidavit specifically covering the Work performed and any materials and equipment
included and billed in the accompanying Application for Payment.
1.1 1.4 Certificates for Payment.
1.11.4.1 The Application for Payment will be reviewed first by the
Owner's Designated Representative who will certify to the City that portion, if any, of the
Application for Payment it has determined is properly due. In the event that the Owner's
Designated Representative believes that payment should be withheld, in whole or in part,
it will notify the City and Contractor of the basis of this view as provided in
Subparagraph 1.1 1.5.1.
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1.11.4.2 The issuance of a Certificate for Payment will constitute a
representation by the Owner's Designated Representative to the City,based on the Owner's
Designated Representative's evaluation of the Work and the data comprising the
Application for Payment, that the Work has progressed to the point indicated and that, to
the best of the Owner's Designated Representative's knowledge, information and belief,
the quality of the Work is in accordance with the Contract Documents. The foregoing
representations are subject to an evaluation of the Work for conformance with the Contract
Documents upon Substantial Completion, to results of subsequent tests and inspections, to
correction of minor deviations from the Contract Documents prior to completion and to
specific qualifications expressed by the Owner's Designated Representative. The issuance
of a Certificate for Payment will further constitute a representation that the Contractor is
entitled to payment in the amount certified. However, the issuance of a Certificate for
Payment will not be a representation that the Owner's Designated Representative has (1)
made exhaustive or continuous on-site inspections to check the quality or quantity of the
Work, (2) reviewed construction means, methods, techniques, sequences or procedures,
(3) reviewed copies of requisitions received from Subcontractors and material suppliers
and other data requested by the City to substantiate the Contractor's right to payment, or
(4) made examination to ascertain how or for what purpose the Contractor has used
money previously paid on account of the Contract Sum.
1.11.4.3 The issuance of a Certificate of Payment shall constitute a
recommendation to the City in respect to the amount to be paid. This recommendation is
not binding on the City if City knows of other reasons under the Contract why payment
should be withheld.
1.11.4.4 The Owner's Designated Representative will affix his
signature to the same form described in Paragraph 1.11.4.1. to signify his certification of
payment provided the application is otherwise satisfactory.
1.11.5 Decisions to Withhold Certification.
1.11.5.1 The Owner's Designated Representative may withhold a
Certificate for Payment in whole or in part, to the extent reasonably necessary to protect
the City, if in the Owner's Designated Representative's opinion the representations to the
City required by Paragraph 1.11.4.2. can not be made. If the Design Engineer is unable to
certify payment in the amount of the Application, the Owner's Designated Representative
will notify the Contractor and City as provided in Paragraph 1.11.4.1. If the Contractor and
Owner's Designated Representative cannot agree on a revised amount, the Owner's
Designated Representative will promptly issue a Certificate for Payment for the amount
for which the Owner's Designated Representative is able to make such representations to
the City. The Owner's Designated Representative may also withhold a Certificate for
Payment or, because of subsequently discovered evidence, may nullify the whole or a
part of a Certificate for Payment previously issued, to such extent as may be necessary in
the Owner's Designated Representative's opinion to protect the City from loss for which
the Contractor is responsible, including loss resulting from acts and omissions described
in Paragraph 1.5.5.2.,because of:
(a) defective Work not remedied;
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(b) third party claims filed or reasonable evidence indicating
probable filing of such claims unless security acceptable to the City is provided by
the Contractor;
(c) failure of the Contractor to make payments properly to
Subcontractors or for labor, materials or equipment;
(d) reasonable evidence that the Work cannot be completed for
the unpaid balance of the Contract Sum;
(e) damage to the City or another contractor;
(f) reasonable evidence that the Work will not be completed
within the Contract Time, and that the unpaid balance would not be adequate to
cover actual or liquidated damages for the anticipated delay; or
(g) persistent failure to carry out the Work in accordance with
the Contract Documents.
1.11.5.2 When the above reasons for withholding certification are
removed, certification will be made for amounts previously withheld.
1.11.6 Progress Payments.
1.11.6.1 After the Owner's Designated Representative has issued a
Certificate for Payment, the City shall make payment in the manner and within the
time provided in the Contract Documents, and shall so notify the Owner's Designated
Representative. If the City believes the Contractor is not current in its legitimate
obligations to suppliers, laborers and/or Subcontractors on the Project, City may(but is
not obligated to) withhold payment until it receives partial or final releases, or other
reasonable proof from the Contractor that this situation does not exist.
1.11.6.2 The Contractor shall promptly pay each Subcontractor, upon
receipt of payment from the City, out of the amount paid to the Contractor on account of
such Subcontractor's portion of the Work, the amount to which said Subcontractor is
entitled, reflecting percentages actually retained from payments to the Contractor on
account of such Subcontractor's portion of the Work. The Contractor shall, by appropriate
agreement with each Subcontractor, require each Subcontractor to make payments to Sub-
subcontractors in a similar manner. City is not obligated to monitor payments to
Subcontractors or Sub-subcontractors, and nothing in this paragraph shall create any right
on the part of a Subcontractor or Sub-subcontractor against City.
1.11.6.3 Neither the City nor Owner's Designated Representative shall
have an obligation to pay or to see to the payment of money to a Subcontractor or Sub-
subcontractor.
1.11.6.4 Payment to material suppliers shall be treated in a manner
similar to that provided in Paragraphs 1.11.6.2., 1.11.6.3. and 1.11.6.4.
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1.11.6.5 A Certificate for Payment, a progress payment, or partial or
entire use or occupancy of the Project by the City shall not constitute acceptance of Work
not in accordance with the Contract Documents.
1.11.7 Failure of Payment.
1.11.7.1 If the City incurs any costs and expenses in curing any default
of the Contractor or correcting defective Work, the City shall have an absolute right to
offset such amount against the Contract Sum under this Contract, and may, in the
City's sole discretion, elect either to: (1) deduct an amount equal to that to which the
Owner is entitled, or (2) issue a written notice to the Contractor reducing the GMP by an
amount equal to that to which the Owner is entitled.
1.11.8 Substantial Completion.
1.11.8.1 When the Contractor considers that the Work, or a portion
thereof which the City agrees to accept separately, is substantially complete, the Owner's
Designated Representative and/or Design Engineer and City shall review the punch list
prepared by Contractor and supplement the list as necessary. Failure to include an item
on such list does not alter the responsibility of the Contractor to complete all Work in
accordance with the Contract Documents.
1.11.8.1.1 The Contractor's superintendent shall participate in the
preparation of the Contractor's punch list that is submitted to the Owner's
Designated Representative and City for supplementation. Upon receipt, the
Owner's Designated Representative shall perform a spot review to determine
the adequacy and completeness of the Contractor's punch list. Should the
Owner's Designated Representative and/or Design Engineer determine that the
Contractor's punch list lacks sufficient detail or requires extensive
supplementation, the punch list will be returned to the Contractor for further
inspection and revision. The date of Substantial Completion will be delayed
until the punch list submitted is a reasonable representation of the work to be
done.
1.11.8.1.2 Upon receipt of an acceptable Contractor's punch list,
the Contractor's superintendent shall accompany the Owner's Designated
Representative and/or Design Engineer, its Consultants and the City (at its
discretion) during their inspections and the preparation of their supplements to
the Contractor's punch list. The superintendent shall record or otherwise take
note of all supplementary items. The Owner's Designated Representative will
endeavor to furnish to the Contractor typed, hand written or recorded
supplements to the punch list in a prompt manner; however, any delay in the
Contractor's receiving said supplements from the Owner's Designated
Representative shall not be cause for a claim for additional cost or extension of
time.
1.11.8.2 When the Contractor notifies Owner's Designated
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Representative that it has completed or corrected items on the punch list, the Owner's
Designated Representative and/or Design Engineer will make an inspection to determine
whether the Work or designated portion thereof is substantially complete. If the Owner's
Designated Representative and/or Design Engineer's inspection discloses any item,
whether or not included on the Contractor's punch list,which is not sufficiently complete in
accordance with the Contract Documents so that the City can occupy or utilize the Work or
designated portion thereof for its intended use, the Contractor shall, before issuance of the
Certificate of Substantial Completion, complete or correct such item upon notification by
the Owner's Designated Representative. In such case, the Contractor shall then submit a
request for another inspection by the Owner's Designated Representative and/or Design
Engineer to determine Substantial Completion. Any further inspections by the Owner's
Designated Representative and/or Design Engineer for the purpose of determining the
Project is Substantially Complete shall be at Contractor's cost and the City may deduct
such cost from any amount payable to Contractor hereunder.
1.11.8.3 When the Work or designated portion thereof is substantially
complete, the Owner's Designated Representative and/or Design Engineer will prepare a
Certificate of Substantial Completion which shall establish the date of Substantial
Completion, shall establish responsibilities of the City and Contractor for security,
maintenance,heat,utilities,damage to the Work and insurance,and shall fix the time within
which the Contractor shall finish all items on the list accompanying the Certificate.
Warranties required by the Contract Documents shall commence on the date of Substantial
Completion of the Work or designated portion thereof unless otherwise provided in the
Certificate of Substantial Completion.
1.11.8.4 The Certificate of Substantial Completion shall be submitted
to the City and Contractor for their written acceptance of responsibilities assigned to them
in such Certificate. Upon such acceptance and consent of surety, if any, the City, in its sole
discretion, may make payment of retainage, or a portion thereof as determined in the
City's sole discretion, applying to such Work or designated portions thereof. Such
payment shall be adjusted for Work that is incomplete or not in accordance with the
requirements of the Contract Documents.
1.11.8.5 Upon final completion of all remaining outstanding or
incomplete work, identified in the Certificate of Substantial Completion, the Owner's
Designated Representative and/or Design Engineer shall issue a Certificate of Final
Completion and Acceptance. Upon such issuance, the City shall release all remaining
retainage, if any.
1.11.8.6 The Contractor shall keep all required insurance in full force,
and provide payment for all utilities, until the Certificate of Substantial Completion
and Acceptance is issued, and all Work is accepted by the City in writing, regardless of
the stated date of Substantial Completion. Such Acceptance shall not be unreasonably
withheld. Contractor shall provide City a minimum of 3 days written notice of
Contractor's planned utility contract termination date.
1.11.9 Partial Occupancy or Use.
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1.11.9.1 The City may occupy or use any completed or partially
completed portion of the Work at any stage when such portion is designated by separate
agreement with the Contractor, provided such occupancy or use is consented to by the
insurer as required under Paragraph 1.13.3.1. and authorized by public authorities having
jurisdiction over the Work. Such partial occupancy or use may commence whether or not
the portion is substantially complete, provided the City and Contractor have accepted in
writing the responsibilities assigned to each of them for payments,retainage,if any,security,
maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing
concerning the period for correction of the Work and commencement of warranties required
by the Contract Documents.
1.11.9.2 Immediately prior to such partial occupancy or use, the City,
Contractor and Owner's Designated Representative shall jointly inspect the area to be
occupied or portion of the Work to be used in order to determine and record the condition
of the Work.
1.11.9.3 Unless otherwise agreed upon, partial occupancy or use of a
portion or portions of the Work shall not constitute acceptance of Work not complying with
the requirements of the Contract Documents.
1.11.10 Final Completion and Final Payment.
1.11.10.1 Upon City's receipt of written notice that the Work is ready
for final inspection and acceptance and upon receipt of a final Application for Payment,the
Owner's Designated Representative will promptly make such inspection and, when the
Owner's Designated Representative finds the Work acceptable under the Contract
Documents and the Contract fully performed,the Owner's Designated Representative and/or
Design Engineer will promptly issue a final Certificate for Payment stating that to the
best of the Owner's Designated Representative and/or Design Engineer's knowledge,
information and belief, and on the basis of the Owner's Designated Representative and/or
Design Engineer's on-site visits and inspections, the Work has been completed in
accordance with terms and conditions of the Contract Documents and that the entire
balance found to be due the Contractor and noted in the final Certificate is due and
payable. The Owner's Designated Representative final Certificate for Payment will
constitute a further representation that conditions listed in Paragraph 1.11.10.2. as
precedent to the Contractor's being entitled to final payment have been fulfilled.
Prior to final payment, the Contractor shall submit to the Owner's Designated
Representative the following completed forms:
(a) Contractor's Affidavit of Payment of Debts and Claims;
(b) Contractor's Affidavit of Release of Liens;
(c) Consent of Surety to Final Payment(if applicable);
(d) Subcontractor's Unconditional Releases — each signed and
notarized on a single piece of paper;
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(e) Maintenance and inspection manuals—three (3)sets of each
bound in a 3 inch"D-slant"ring binder;
(f) Final list of subcontractors,
(g) one (1) complete set of marked-up copies of the Drawings
and Specifications accurately showing the Project as constructed. Such
Specifications and Drawings shall be marked to show all changes and modifications
that have been incorporated into the Work as performed;
(h) other data establishing payment or satisfaction of
obligations, such as receipts,releases and waivers of liens, claims, security interests
or encumbrances arising out of the Contract, to the extent and in such form as may
be designated by the City; and
(i) any other"Closeout Documents"required under the
Contract Documents.
Documents identified as affidavits must be notarized. All manuals will contain an index
listing the information submitted. The index sections will be divided and identified by
tabbing each section as listed in the index. Upon request, the Owner's Designated
Representative will furnish the Contractor with blank copies of the forms listed above.
Final payment, constituting the entire unpaid balance of the Contract Sum shall be paid
by the City to the Contractor thirty(30) days after Substantial Completion of the Work,
unless otherwise stipulated in the Certificate of Completion, provided the Contract is
fully performed, and Final Certificate of Payment has been issued by the Owner's
Designated Representative. The City may accept certain portions of the Work as being
complete prior to the acceptance of the entire Project. If certain areas are accepted by
the City as being completed, and if the Contractor has completed all of the
requirements for final payment of the portion of Work, the City may, but is not required
to, release retainage for that area/portion of Work. Amounts of retainage shall be agreed
upon by both City and Contractor prior to final acceptance of these areas.
1.11.10.2 If, after Substantial Completion of the Work, final completion
thereof is materially delayed through no fault of the Contractor or by issuance of Change
Orders affecting final completion, and the Owner's Designated Representative so
confirms, the City shall, upon application by the Contractor and certification by the
Owner's Designated Representative and/or Design Engineer, and without terminating the
Contract, make payment of the balance due for that portion of the Work fully completed
and accepted. If the remaining balance for Work not fully completed or corrected is less
than retainage stipulated in the Contract Documents, and if bonds have been furnished, the
written consent of surety to payment of the balance due for that portion of the Work fully
completed and accepted shall be submitted by the Contractor to the Owner's
Designated Representative prior to certification of such payment. Such payment shall be
made under terms and conditions governing final payment, except that it shall not
constitute a waiver of claims.
1.11.10.3 Acceptance of final payment by the Contractor shall constitute
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a waiver of claims by Contractor except for any Claims then pending that comply with the
requirements of Paragraph 1.6.3.
1.12 Protection of Persons and Property.
1.12.1 Safety Precautions and Programs.
1.12.1.1 The Contractor shall be responsible for initiating, maintaining
and supervising all necessary safety precautions and programs in connection with the
performance of the Contract.
1.12.2 Safety of Persons and Property.
1.12.2.1 The Contractor shall take reasonable precautions for safety of,
and shall provide reasonable protection to prevent damage, injury or loss to:
(a) employees on the Work and other persons who may be
affected thereby including but not limited to the City's employees, invitees and the
general public;
(b) the Work and materials and equipment to be incorporated
therein, whether in storage on or off the site, under care, custody or control of the
Contractor or the Contractor's Subcontractors or Sub-subcontractors; and
(c) other property at the site or adjacent thereto, such as trees,
shrubs, lawns, walks, pavements, roadways, structures and utilities not designated
for removal, relocation or replacement in the course of construction.
1.12.2.2 The Contractor shall give notices and comply with applicable
laws, ordinances,rules,regulations and lawful orders of public authorities bearing on safety
of persons or property or their protection from damage, injury or loss.
1.12.2.3 The Contractor shall erect and maintain, as required by
existing conditions and performance of the Contract, reasonable safeguards for safety and
protection,including posting danger signs and other warnings against hazards,promulgating
safety regulations and notifying owners and users of adjacent sites and utilities.
1.12.2.4 When use or storage of explosives or other hazardous
materials or equipment or unusual methods are necessary for execution of the Work, the
Contractor shall exercise utmost care and carry on such activities under supervision of
properly qualified personnel. When use or storage of explosives or other hazardous
materials or equipment or unusual construction methods are necessary, the Contractor shall
give the City and Owner's Designated Representative reasonable advance notice of the
presence or use of such materials, equipment or methods.
1.12.2.5 The Contractor shall promptly remedy damage and loss (other
than damage or loss insured under property insurance required by the Contract Documents)
to property referred to in Paragraphs 1.12.2.1(b). and 1.12.2.1.(c). caused in whole or in part
by the Contractor, a Subcontractor, a Sub-subcontractor, or anyone directly or indirectly
45
employed by any of them, or by anyone for whose acts they may be liable and for which the
Contractor is responsible under Paragraphs 1.12.2.1, except damage or loss attributable to
acts or omissions of the City, Owner's Designated Representative, or Design Engineer or
anyone directly or indirectly employed by either of them, or by anyone for whose acts
either of them may be liable, and not attributable to the fault or negligence of the
Contractor. The foregoing obligations of the Contractor are in addition to the Contractor's
obligations under Paragraph 1.5.19.6.
1.12.2.6 The Contractor shall designate a responsible member of the
Contractor's organization at the site whose duty shall be the prevention of accidents. This
person shall be the Contractor's superintendent unless otherwise designated by the
Contractor in writing to the Owner and Owner's Designated Representative.
1.12.2.7 The Contractor shall not load or permit any part of the
construction or site to be loaded so as to endanger its safety.
1.12.2.8 Suspension of all or a portion of the Work,for any reason,shall
not relieve the Contractor of its obligations under Paragraph 1.12.2.
1.12.2.9 The Contractor shall promptly report in writing to the City and
Owner's Designated Representative all accidents arising out of or in connection with the
Work which cause death, personal injury, or property damage, giving full details and
statement of any witnesses. In addition, if death, serious personal injuries, or serious
property damages are caused, the accident shall be reported immediately by telephone or
messenger to City and Owner's Designated Representative.
1.12.2.10 The Contractor shall be responsible for the protection and
security of the Work and the Project,until it receives written notification that the Substantial
Completion of the Work has been accepted by the City unless otherwise provided in the
Certificate of Substantial Completion.
1.12.3 Hazardous Materials.
1.12.3.1 Contractor agrees that it shall not transport to, use, generate,
dispose of, or install at the Project site any Hazardous Substance (as defined in 1.12.3.1.3.),
except in accordance with applicable Environmental Laws. Further, in performing the
Work, Contractor shall not cause any release of Hazardous Substances into, or
contamination of,the environment, including the soil, the atmosphere, any water course or
ground water, except in accordance with applicable Environmental Laws (as hereafter
defined at Paragraph 1.12.3.1.3). In the event Contractor engages in any of the activities
prohibited in this Paragraph 1.12.3.1. to the fullest extent permitted by law, Contractor
hereby indemnifies and holds City, and all of their respective officers, agents and
employees harmless from and against any and all claims, damages, losses, causes of
action, suits, and liabilities of every kind, including, but not limited to, expenses of
litigation, court costs, punitive damages and attorneys' fees, arising out of, incidental
to or resulting from the activities prohibited in this Paragraph 1.12.3.
1.12.3.2 In the event Contractor encounters on the Project site any
Hazardous Substance, or what Contractor may reasonably believe to be a Hazardous
46
Substance, and which is being introduced to the Work, or exists on the Project site, in a
manner violative of any applicable Environmental Laws, Contractor shall immediately stop
work in the area affected and report the condition to City and Owner's Designated
Representative in writing. The Work in the affected area shall not thereafter be resumed
except by written authorization of City if in fact a Hazardous Substance has been
encountered and has not been rendered harmless. In the event Contractor fails to stop the
Work upon encountering a Hazardous Substance at the Project site, to the fullest extent
permitted by law, Contractor hereby indemnifies and holds City, and all of their
respective officers, agents and employees harmless from and against any and all claims,
damages, losses, causes of action, suits, and liabilities of every kind, including, but
not limited to, expenses of litigation, court costs, punitive damages and attorneys' fees,
arising out of, incidental to or resulting from Contractor's failure to stop the Work.
1.12.3.3 City and Contractor may enter into a separate agreement
and/or Change Order for Contractor to remediate and/or render harmless pre-existing
Hazardous Substances, but Contractor shall not be required to remediate and/or render
harmless the Hazardous Substance absent such agreement. Contractor shall not be required
to resume work in any area affected by the Hazardous Substance until such time as the
Hazardous Substance has been remediated and/or rendered harmless. Contractor shall be
solely responsible for all costs of remediation associated with Hazardous Substances
imported, with or without Owner's knowledge, to the work site by Contractor or any
Subcontractor.
1.12.3.4 For purposes of this Agreement, the term "Hazardous
Substance" shall mean and include any element constituent, chemical, substance, compound,
or mixture, which are defined as a hazardous substance by any local, state or federal law,
rule, ordinance, by-law, or regulation pertaining to environmental regulation,
contamination, clean-up or disclosure, including, without limitation, The Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), The Resource
Conservation and Recovery Act ("RCRA"), The Toxic Substances Control Act ("TSCA"),
The Clean Water Act ("CWA"), The Clean Air Act ("CAA"), the Marine Protection
Research and Sanctuaries Act ("MPRSA"), The Occupational Safety and Health Act
("OSHA"), The Superfund Amendments and Reauthorization Act of 1986 ("SARA"), or
other state superlien or environmental clean-up or disclosure statutes including all state
and local counterparts of such laws (all such laws, rules and regulations being referred to
collectively as "Environmental Laws"). It is the Contractor's responsibility to comply with
Paragraph 1.12.3.1 based on the law in effect at the time its services are rendered and to
comply with any amendments to those laws for all services rendered after the effective
date of any such amendments.
1.12.4 Emergencies.
1.12.4.1 In an emergency affecting safety of persons or property, the
Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury or
loss. Additional compensation or extension of time claimed by the Contractor on account
of an emergency shall be determined as provided in Paragraph 1.6.3. and Paragraph 1.9.
1.13 bsurance and Bonds.
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1.13.1 Contractor's Liability Insurance.
1.13.1.1 The Contractor shall purchase and maintain insurance as
shown in ATTACHMENT 1, OWNER'S INSURANCE REQUIREMENTS OF
CONTRACTOR and specific project related insurance requirements as noted in
ATTACHMENT 2, SPECIAL CONDITIONS OF THE AGREEMENT.
1.13.2 Certificates of Insurance.
1.13.2.1 Certificates of Insurance shall be prepared and executed by
the insurance company or its authorized agent and must be provided in accordance with
Section 1.13.1.1.1 and are attached as EXHIBIT A, Contractor's Insurance Certificates
including Builder's Risk.
1.13.3 Property Insurance.
1.13.3.1 Partial occupancy or use in accordance with Paragraph 1.11.9.
shall not commence until the insurance company or companies providing property insurance
have consented to such partial occupancy or use by endorsement or otherwise. The City and
the Contractor shall take reasonable steps to obtain consent of the insurance company or
companies and shall, without mutual written consent, take no action with respect to partial
occupancy or use that would cause cancellation, lapse or reduction of insurance.
1.13.3.2 Loss of Use Insurance. The City, at the City's option, may
purchase and maintain such insurance as will insure the City against loss of use of the City's
property due to fire or other hazards, however caused.
1.13.3.3 If the Contractor requests in writing that insurance for risks
other than those described herein or other special causes of loss be included in the property
insurance policy,the City shall,at City's option,include such insurance,and the cost thereof
shall be charged to the Contractor by appropriate Change Order.
1.13.3.4 If during the Project construction period the City insures
properties, real or personal or both, at or adjacent to the site by property insurance under
policies separate from those insuring the Project, or if after final payment property insurance
is to be provided on the completed Project through a policy or policies other than those
insuring the Project during the construction period, the City shall waive all rights for
damages caused by fire or other causes of loss covered by this separate property insurance.
All separate policies shall provide this waiver of subrogation by endorsement or otherwise.
1.13.3.5 A loss insured under City's property insurance shall be
adjusted by the City and made payable to the City for the insureds, as their interests may
appear, subject to requirements of Paragraph 1.13.3. The Contractor shall pay
Subcontractors their just shares of insurance proceeds received by the Contractor, and by
appropriate agreements, written where legally required for validity, shall require
Subcontractors to make payments to their Sub-subcontractors in similar manner.
1.13.3.6 If after such loss no other special agreement is made and unless
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the City terminates the Contract for convenience,replacement of damaged property shall be
performed by the Contractor after notification of a Change in the Work in accordance with
Paragraph 1.9.
1.13.4 Performance Bond and Payment Bond.
1.13.4.1 Pursuant to Chapter 2253 of the Texas Government Code, for
all public works contracts with governmental entities, performance and payment bonds
are required when the Contract Amount exceeds $50,000. In the event a performance or
payment bond or both is required either by law or in the City's discretion, such bonds
shall be executed in accordance with all requirements of Article 7.19-1 of the Texas
Insurance Code, all other applicable law, and the following:
(a) The Contractor shall execute performance and payment
bonds for the full Contract Amount in the forms attached hereto as Exhibit B and
C.
(b) The bond surety shall be authorized under the laws of the
State of Texas to provide a performance and payment bond and shall have attached
proof of authorization of the surety to act in the performance and payment of bonds.
(c) The Contractor shall provide original, sealed, and complete
counterparts of the executed bonds in the forms required by the Contract
Documents, which are attached as Exhibit B and C, together with valid original
powers of attorney, at the time of execution of this Agreement and prior to the
commencement of Work. Copies of the executed bonds shall be attached hereto
as Exhibit B and C.
(d) The performance and payment bonds shall remain in effect
for a period of one (1) year after Final Completion of the Work.
(e) If at any time during the execution of this Agreement in the
required period thereafter, the bond or bonds become invalid or ineffective for any
reason, the Contractor shall promptly supply within ten (10) days such other bond
or bonds,which bond or bonds shall assure performance or payment as required.
1.13.4.2 The Contractor may make such changes and alterations as the
City may require in the Work or any part thereof without affecting the validity of this
Agreement and any accompanying bond. If such changes or alterations diminish the
quantity of the Work to be done,they shall not constitute the basis for any claim for damages
or anticipated profits. If the City makes changes or alterations that render useless any Work
already done or material already used in said Work, then the City shall compensate the
Contractor for any material or labor so used, and for any actual loss occasioned by such
change due to actual expenses incurred in preparation for the work as originally planned.
1.14 Uncovering and Correction of Work.
1.14.1 Uncovering of Work.
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1.14.1.1 If a portion of the Work is covered contrary to the Owner's
Designated Representative's request, required inspection, or contrary to requirements in
the Contract Documents, the Work must, if required in writing by the Owner's
Designated Representative, be uncovered for the Owner's Designated Representative's
examination or inspection of the work and be replaced at the Contractor's expense
without change in the Contract Time.'
1.14.1.2 If a portion of the Work has been covered which the Owner's
Designated Representative has not specifically requested to examine prior to its being
covered, the Owner's Designated Representative may request to see such Work and it
shall be uncovered by the Contractor. If such Work is in accordance with the Contract
Documents, costs of uncovering and replacement shall, by appropriate Change Order, be
at the City's expense. If such Work is not in accordance with the Contract Documents,
correction shall be at the Contractor's expense.
1.14.2 Correction of Work.
1.14.2.1 Before or After Substantial Completion.
1.14.2.1.1 The Contractor shall promptly correct Work
rejected by the Owner's Designated Representative and/or Design Engineer or
failing to conform to the requirements of the Contract Documents, whether
discovered before or after Substantial Completion and whether or not fabricated,
installed or completed. Costs of correcting such rejected Work, including
additional testing and inspections and compensation for the Design Engineer's
services and expenses made necessary thereby, shall be at the Contractor's
expense.
1.14.2.2 After Substantial Completion.
1.14.2.2.1 In addition to the Contractor's obligations
under Paragraph 1.5.7., if, within one year after the date of Substantial
Completion of the Work or designated portion thereof or after the date for
commencement of warranties established under Paragraph 1.11.9.1., or by
terms of an applicable special warranty required by the Contract Documents,
any of the Work is found to be not in accordance with the requirements of the
Contract Documents, the Contractor shall correct it promptly after receipt of
written notice from the City to do so unless the City has previously given the
Contractor a written acceptance of such particular condition. The City shall give
such notice promptly after discovery of the condition. If the Contractor fails to
correct nonconforming Work within a reasonable time during that period
after receipt of notice from the City or Owner's Designated Representative,
the City may correct it in accordance with Paragraph 1.4.5. The "prompt"
correction of defective work by the Contractor after receipt of notification
from the City as described above shall be defined as follows:
(a) The Contractor shall make written response to the City
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within twenty-four(24)hours of receipt of the City's notice, acknowledging receipt
of the notice and providing the proposed schedule to conduct corrective work.
Corrective work shall not interfere with the City's normal operation and use of the
Project, unless expressly approved by the City;
(b) For corrective work which is not a life safety issue or which
will not, by the nature of the defect, cause subsequent damage to the Project,
corrective work shall be completed within fourteen(14)calendar days;
(c) For corrective work which by its nature may cause
subsequent damage to the Project, corrective work required to prevent subsequent
damage shall be completed within twenty-four (24) hours, and if such work is a
temporary repair,permanent repair of the corrective work shall be completed within
seven (7) calendar days. The Contractor shall also correct all subsequent damage
caused by such corrective work;
(d) For corrective work which affects services to, and ordinary
use of the Project, corrective work shall be completed within twenty-four (24)
hours, and if such work is a temporary repair, permanent repair of the corrective
work shall be completed within seven(7)calendar days; and
(e) The time frames stated above for completion of permanent
corrective work shall be equitably adjusted as required for legitimate delays caused
by weather delays, material acquisition and other factors beyond the Contractor's
direct control.
1.14.2.2.2 The one-year period for correction of Work shall
be extended with respect to portions of Work first performed after Substantial
Completion by the period of time between Substantial Completion and the actual
performance of the Work.
1.14.2.2.3 These obligations under Subparagraph 1.14.2.2.
shall survive acceptance of the Work under the Contract and termination of the
Contract. The period for any Work corrected pursuant to Paragraph 1.14.2. shall
be extended for a period of one year after the date said corrective work is
completed.
1.14.2.3 The Contractor shall remove from the site portions of the
Work which are not in accordance with the requirements of the Contract Documents and
are neither corrected by the Contractor nor accepted by the City.
1.14.2.4 The Contractor shall bear the cost of correcting destroyed or
damaged construction, whether completed or partially completed, of the City or separate
contractors caused by the Contractor's correction or removal of Work which is not in
accordance with the requirements of the Contract Documents.
1.14.2.4.1 Where non-conforming Work is found, the
entire area of Work involved shall be corrected unless the Contractor can
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completely define the limits to the Owner's Designated Representative
satisfaction. Additional testing, sampling, or inspecting needed to define
nonconforming Work shall be at the Contractor's expense, and performed by
the City's testing laboratory if such services are reasonably required by the
Owner's Designated Representative. All corrected Work shall be retested at the
Contractor's expense. Extra Owner's Designated Representative and/or Design
Engineer or other services required to analyze non-conforming Work shall be
paid for by the Contractor.
1.14.2.5 Nothing contained in Paragraph 1.14.2. shall be construed to
establish a period of limitation with respect to other obligations which the Contractor might
have under the Contract Documents. Nothing contained in Paragraph 1.14.2. is intended to
limit or modify any obligations under the law or under the Contract Documents, including
any warranty obligations, expressed or implied.
1.14.3 Acceptance of Nonconforming Work.
1.14.3.1 If the Owner prefers to accept Work which is not in
accordance with the requirements of the Contract Documents, the City may do so instead
of requiring its removal and correction, in which case the Contract Sum will be reduced
as appropriate and equitable. Such adjustment shall be affected whether or not final
payment has been made.
1.15 Miscellaneous Provisions.
1.15.1 Governing Law.
1.15.1.1 This Contract and any disputes related to the Work shall be
governed by the law of the State of Texas, and any disputes shall be resolved in
Brazoria County, Texas.
1.15.2 Successors and Assigns.
1.15.2.1 The City and Contractor respectively bind themselves, their
partners, successors, assigns and legal representatives to the other party hereto and to
partners, successors, assigns and legal representatives of such other party in respect to
covenants, agreements and obligations contained in the Contract Documents. Contractor
shall not assign the Contract as a whole, or in part, without written consent of the City. If
either party attempts to make such an assignment without such consent, that party shall
nevertheless remain legally responsible for all obligations under the Contract.
1.15.3 Written Notice.
1.15.3.1 Written notice shall be deemed to have been served only if the
writing is delivered to the addressees set out below, or to such other address as has been
previously clearly identified in writing by the addressee, or if delivered by mail or in form
of electronic transmission to that office,or sent by registered or certified mail to that address.
City: City of Pearland
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3519 Liberty Drive
Pearland, Texas 77582
Attn: Engineering& Projects
Contractor: PLW Waterworks
1725 Hughes Landing Blvd, Suite 1200
The Woodlands, TX 77380
Attn: Christian Annexy
1.15.4 Rights and Remedies.
1.15.4.1 No action or failure to act by the City, Owner's Designated
Representative, Design Engineer or Contractor shall constitute a waiver of a right or duty
afforded them under the Contract, nor shall such action or failure to act constitute approval
of or acquiescence in a breach thereunder,except as may be specifically agreed in writing.
1.15.5 Tests and Inspections.
1.15.5.1 Tests, inspections and approvals of portions of the Work
required by the Contract Documents or by laws, ordinances, rules, regulations or orders of
public authorities having jurisdiction shall be made at appropriate times. Unless otherwise
provided,the Contractor shall make scheduling arrangements for such tests, inspections and
approvals with an independent testing laboratory employed by the City for this purpose,
or with the appropriate public authority. City shall bear the normal costs of these services,
but not any excess costs attributable to Contractor-caused scheduling problems, or other
Contractor error. The Contractor shall give the Owner's Designated Representative timely
notice of when and where tests and inspections are to be made so the Owner's Designated
Representative may observe such procedures.
1.15.5.2 If the Owner's Designated Representative, Design Engineer,
City or public authorities having jurisdiction determine that portions of the Work require
additional testing, inspection or approval not included under Paragraph 1.15.5.1., the
Owner's Designated Representative will,upon written authorization from the City,instruct
the Contractor to make arrangements for such additional testing, inspection or approval by
an entity acceptable to the City, and the Contractor shall give timely notice to the
Owner's Designated Representative of when and where tests and inspections are to be
made so that the Owner's Designated Representative may be present for such procedures.
Such costs, except as provided in Paragraph 1.15.5.3., shall be at the City's expense.
1.15.5.3 If such procedures for testing, inspection or approval under
Paragraphs 1.15.5.1 and 1.15.5.2. reveal failure of the portions of the Work to comply with
requirements established by the Contract Documents, all costs made necessary by such
failure including those of repeated procedures and compensation for the Owner's Designated
Representative and/or Design Engineer's services and expenses shall be at the Contractor's
expense. Required certificates of testing, inspection or approval shall, unless otherwise
required by the Contract Documents, be kept and logged by the Contractor in ProTrak.
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All testing reports will be made available to all parties.
1.15.5.4 If the Owner's Designated Representative is to observe tests,
inspections or approvals required by the Contract Documents, the Owner's Designated
Representative will do so promptly and, where practicable, at the normal place of testing.
1.15.5.5 Tests or inspections conducted pursuant to the Contract
Documents shall be made promptly to avoid unreasonable delay in the Work.
1.16 Termination or Suspension of the Contract.
1.16.1 Termination by the Contractor.
1.16.1.1 The Contractor may terminate the Contract if the Work is
stopped for a period of ninety(90) consecutive days through no act or fault of the Contractor
or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or
entities performing portions of the Work under direct or indirect contract with the
Contractor, for any of the following reasons:
(a) issuance of an order of a court or other public authority
having jurisdiction which requires all Work to be stopped;
(b) an act of government, such as a declaration of national
emergency which requires all Work to be stopped; or
(c) because the Owner's Designated Representative and/or
Design Engineer has not issued a Certificate for Payment and has not notified
the Contractor of the reason for withholding certification as provided in
Paragraph 1.11.4.1., or because the City has not made payment on a Certificate
for Payment within the time stated in the Contract Documents, provided
notice is given as required under Subparagraph 1.11.4.1.
1.16.1.2 The Contractor may terminate the Contract if, through no act
or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees
or any other persons or entities performing portions of the Work under direct or indirect
contract with the Contractor, repeated suspensions, delays or interruptions of the entire
Work by the City as described in Paragraph 1.16.3. constitute in the aggregate more than
100 percent of the total number of days scheduled for completion, or 120 days in any 365-
day period,whichever is less.
1.16.1.3 If the Work is stopped for ninety(90)consecutive days for any
reason described in Paragraph 1.16.1.1. or 1.16.1.2.,the Contractor may, upon fourteen(14)
days' written notice to the City and Owner's Designated Representative, terminate the
Contract and recover from the City payment for Work.
1.16.1.4 Notwithstanding anything to the contrary contained herein or
in the other Contract Documents, the City shall not be responsible for damages for loss of
anticipated profits on Work not performed on account of any termination described in
Subparagraphs 1.16.1.1., 1.16.1.2., and 1.16.1.3.
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1.16.2 Termination by the Owner for Cause.
1.16.2.1 The City may terminate the Contract if the Contractor:
(a) refuses or fails to supply enough properly skilled workers or
proper materials;
(b) fails to make payment to Subcontractors for materials or
labor in accordance with the respective agreements between the Contractor and the
Subcontractors;
(c) disregards laws, ordinances, or rules, regulations or orders
of a public authority having jurisdiction;
(d) otherwise is guilty of substantial breach of a provision of the
Contract Documents;
(e) fails to furnish the City, upon request, with assurances
satisfactory to the City evidencing the Contractor's ability to complete the Work in
compliance with all the requirements of the Contract Documents;
(f) fails to proceed continuously and diligently with the
construction and completion of the Work, except as permitted under the Contract
Documents; or
(g) fails to provide all required policies of insurance and/or
bonds.
1.16.2.2 When any of the above reasons exist, the City may without
prejudice to any other rights or remedies of the City and after giving the Contractor and the
Contractor's surety, if any, seven days written notice of the specific default by Contractor
and an opportunity to cure said default. If Contractor fails to cure default, after an
additional seven day notice the Owner may terminate employment of the Contractor and
may, subject to any prior rights of the surety:
(a) take possession of the site and of all materials, equipment,
tools,and construction equipment and machinery thereon owned by the Contractor;
(b) accept assignment of subcontracts pursuant to Paragraph 1.7.4;
(c) Make demand upon Contractor's surety to complete the
Work; and
(d) finish the Work by whatever reasonable method the City
may deem expedient.
1.16.2.3 When the City terminates the Contract for one of the reasons
stated in Paragraph 1.16.2.1, the Contractor shall not be entitled to receive further payment
until the Work is finished.
1.16.2.4 If the unpaid balance of the Contract Sum exceeds costs of
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finishing the Work, including compensation for the Owner's Designated Representative
and/or Design Engineer's services and expenses made necessary thereby, and other
damages incurred by the City and not expressly waived, including attorney's fees,
such excess shall be paid to the Contractor. If such costs and damages exceed the
unpaid balance, the Contractor shall pay the difference to the City. This obligation for
payment shall survive termination of the Contract.
1.16.2.5 If a Performance Bond has been furnished and the Contractor
is declared by the City to be in default under the Contract, the Surety shall promptly, in no
event to exceed 30 days, remedy the default by commencing and continuing to perform the
remaining work of the Contract in accordance with its terms and conditions, or by obtaining
a bid or bids in accordance with its terms and conditions. At City's election, upon
determination by the City and the Surety of the lowest responsible bidder, the Surety will
complete the Work or will arrange for a Contract between such bidder and the City, and
make available sufficient funds to pay the cost of completion less the balance of the Contract
Sum, but not exceeding the Penal Sum of the bond. The phrase "balance of the Contract
Sum"as used herein shall mean the total amount payable by the City to the Contractor under
the Contract, including any adjustments thereto made in accordance with the terms and
conditions of this Contract, and amendments thereto less the amount previously paid by the
City to the Contractor.
1.16.3 Suspension by the Owner for Convenience.
1.16.3.1 The City may, without cause, and with seven days written
notice, order the Contractor in writing to suspend, delay or interrupt the Work in whole
or in part for such period of time as the City may determine.
1.16.3.2 If City suspends the Contractor's performance for
convenience, an adjustment shall be made to the Contract Sum as calculated under
Paragraph 1.9 and shall include profit. No adjustment shall be made to the extent:
(a) that performance is, was or would have been so suspended,
delayed or interrupted by another cause for which the Contractor is responsible; or
(b) that an equitable adjustment is made or denied under another
provision of the Contract.
1.16.4 Termination by the Owner for Convenience.
1.16.4.1 The City may, at any time, terminate the Contract, in whole
or in part,with seven days written notice, for the City's convenience and without cause.
1.16.4.2 Upon receipt of written notice from the City of such
termination for the City's convenience, the Contractor shall:
(a) cease operations as directed by the City in the notice;
(b) take actions necessary, or that the City may direct, for the
protection and preservation of the Work; and
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(c) except for Work not so terminated and/or directed to be
performed prior to the effective date of termination stated in the notice, terminate
all existing subcontracts and purchase orders and enter into no further subcontracts
and purchase orders.
1.16.4.3 In the event of a termination under Paragraph 1.16.4, the
Contractor shall be paid the value of its Work to the date of termination plus such sums as
are reasonably required to cover the cost to Contractor, its Subcontractors and suppliers, to
shut down the Project. City shall not be responsible for damages for loss of anticipated
profits on Work not performed on account of any termination.
1.16.4.4 Upon determination by a court of competent jurisdiction that
termination of the Contract, pursuant to Paragraph 1.16.2 was wrongful, such termination
will be deemed converted to a termination for convenience pursuant to Paragraph 1.16.4,
and Contractor's remedy for wrongful termination shall be limited to the recovery of the
payments permitted for termination for convenience as set forth in Paragraph 1.16.4.
END OF GENERAL PROVISIONS
SECTION 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES
The Construction Manager shall perform the services described in this Paragraph. The
services to be provided under Paragraphs 2.1 and 2.2 constitute the Construction Planning Phase
services. If the City and Construction Manager agree, the Construction Phase may commence
before the Construction Planning Services Phase is completed, in which case both phases will
proceed concurrently.
2.1 Construction Planning Services Phase.
2.1.1 Preliminary Evaluation. The Construction Manager shall provide a
preliminary evaluation of the City's program and Project budget requirements,
each in terms of the other.
2.1.2 Consultation. The Construction Manager with the Owner's Designated
Representative and/or Design Engineer shall jointly schedule and attend regular
meetings with the City. The Construction Manager shall consult with the City and
Owner's Designated Representative regarding site use and improvements and the
selection of materials, building systems and equipment. The Construction
Manager shall provide recommendations on construction feasibility; actions
designed to minimize adverse effects of labor or material shortages; time
requirements for procurement, installation and construction completion; and
factors related to construction cost, including estimates of alternative designs
or materials, preliminary budgets and possible economies.
2.1.3 Preliminary Project Schedule. When Project requirements described in
Paragraph 3.1.1 have been sufficiently identified, the Construction Manager shall
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prepare, and periodically update, a preliminary Project schedule for the
Owner's Designated Representative's review and the City's approval. The
Construction Manager shall coordinate and integrate the preliminary Project
schedule with the services and activities of the City, Owner's Designated
Representative and Construction Manager. As design proceeds, the preliminary
Project schedule shall be updated to indicate proposed activity sequences and
durations, milestone dates for receipt and approval of pertinent information,
submittal of a Guaranteed Maximum Price proposal, preparation and processing of
shop drawings and samples, delivery of materials or equipment requiring long-
lead-time procurement, City's occupancy requirements showing portions of the
Project having occupancy priority, and proposed date of Substantial Completion. If
preliminary Project schedule updates indicate that previously approved schedules
may not be met, the Construction Manager shall make appropriate
recommendations to the City and Owner's Designated Representative.
2.1.4 Phased Construction. The Construction Manager shall make
recommendations to the City and Owner's Designated Representative regarding
the phased issuance of Drawings and Specifications to facilitate phased
construction of the Work, if such phased construction is appropriate for the
Project, taking into consideration such factors as economies, time of performance,
availability of labor and materials, and provisions for temporary facilities.
2.1.4.1 Preliminary Cost Estimates. When the City has sufficiently identified the
Project requirements and the Design Engineer has prepared other basic design criteria, the
Construction Manager shall prepare, for the review of the Owner's Designated Representative
and approval of the City,a preliminary cost estimate utilizing area, volume or similar conceptual
estimating techniques.
2.1.4.1.1 When Design Documents have been prepared by the Design
Engineer and approved by the City, the Construction Manager shall prepare
a detailed estimate with supporting data for review by the Owner's
Designated Representative and approval by the Owner. The Construction
Manager shall provide an initial cost estimate at thirty percent (30%)
complete and update and refine this estimate when the Design Documents
are sixty percent (60%) and ninety percent (90%) complete, and at any
other appropriate intervals agreed to by the City, Owner's Designated
Representative and Construction Manager necessary to develop a GMP for
the project. These cost estimate updates shall incorporate the latest design
changes, alternate materials and processes as required to provide a
Guaranteed Maximum Price that will meet the Owners stated project budget.
Should the estimates of cost of the work exceed the latest approved project
budget the Construction Manager shall inform the Owner and Owner's
Designated Representative and make recommendations for corrective action.
2.1.4.2 Subcontractors and Suppliers. The Construction Manager shall seek to
develop subcontractor interest in the Project and shall furnish to the City and Owner's
Designated Representative for their information a list of possible subcontractors, including
suppliers who are to furnish materials or equipment fabricated to a special design, from
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whom proposals will be requested for each principal portion of the Work. The Owner's
Designated Representative will promptly reply in writing to the Construction Manager if the
Owner's Designated Representative or City know of any objection to such subcontractor or
supplier. The receipt of such list shall not require the City or Owner's Designated
Representative to investigate the qualifications of proposed subcontractors or suppliers, nor
shall it waive the right of the City, Owner's Designated Representative or Design Engineer later
to object to or reject any proposed subcontractor or supplier.
2.1.4.3 Long-Lead-Time Items. The Construction Manager shall recommend to
the City and Owner's Designated Representative a schedule for procurement of long-lead-time
items which will constitute part of the Work as required to meet the Project schedule. If
such long-lead-time items are procured by the City, they shall be procured on terms and
conditions acceptable to the Construction Manager. Upon the City's acceptance of the
Construction Manager's Guaranteed Maximum Price proposal, all contracts for such items
shall be assigned by the City to the Construction Manager, who shall accept responsibility
for such items as if procured by the Construction Manager. The Construction Manager shall
expedite the delivery of long-lead-time items.
2.1.4.4 Extent of Responsibility. The Construction Manager does not warrant or
guarantee estimates and schedules except as may be included as part of the Guaranteed Maximum
Price. The recommendations and advice of the Construction Manager concerning design
alternatives shall be subject to the review and approval of the City and the City's professional
consultants. It is not the Construction Manager's responsibility to ascertain that the Drawings and
Specifications are in accordance with applicable laws, statutes, ordinances, building codes, rules
and regulations. However, if the Construction Manager recognizes that portions of the Drawings
and Specifications are at variance therewith, the Construction Manager shall promptly notify the
Owner's Designated Representative and City in writing.
2.1.4.5 Equal Employment Opportunity and Affirmative Action. The
Construction Manager shall comply with applicable laws, regulations and special requirements
of the Contract Documents regarding equal employment opportunity and affirmative action
programs. See attached Title VI Nondiscrimination Assurances attached hereto as
ATTACHMENT 4.
2.2 Guaranteed Maximum Price Proposal.
2.2.1 When the Drawings and Specifications are sufficiently complete, but in
no case later than 90% Construction Documents, the Construction Manager shall propose a
Guaranteed Maximum Price,which shall be the sum of the estimated Cost of the Work and the
Construction Manager's Fee along with any identified Allowances as have been determined to
be necessary. Provided, however, Construction Manager understands such estimates are relied
upon by the City in making various Project determinations, and, therefore, should
Construction Manager's Guaranteed Maximum Price proposal exceed the City's applicable
budget by more than 2.5%, all pre-construction services rendered thereafter to render the
Project within 2.5% of the budget by Construction Manager shall be at its cost.
2.2.2 As the Drawings and Specifications may not be finished at the time the
Guaranteed Maximum Price proposal is prepared, the Construction Manager shall provide in the
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Guaranteed Maximum Price for further development of the Drawings and Specifications by the
Design Engineer that is consistent with the Contract Documents and reasonably inferable
therefrom. Such further development does not include such things as changes in scope,
systems, kinds and quality of materials, finishes or equipment, all of which, if required, shall
be incorporated by Change Order.
2.2.3 The estimated Cost of the Work shall separately identify,the Construction
Manager's Contingency, a sum not to exceed three percent(2.5%)of the Guaranteed
Maximum Price, an amount established by the Owner for the Construction Manager's use,
subject to Owner's approval, to cover costs arising under Paragraph 2.2.2 and other costs
which are properly reimbursable as Cost of the Work but not the basis for a Change Order.
Upon Contractor's completion of the Project, all unused portions of the Construction Manager's
Contingency and those from the Guaranteed Maximum Price shall be set aside as cost savings for
the benefit of the Owner.
2.2.3.1.1 Basis of Guaranteed Maximum Price. The Construction Manager
shall include with the Guaranteed Maximum Price proposal a written statement of its basis,which
shall include:
(a) A list of the Drawings and Specifications, including all addenda thereto
and the Conditions of the Contract,which were used in preparation of the Guaranteed Maximum
Price proposal.
(b) A list of the clarifications and assumptions made by the Construction
Manager in the preparation of the Guaranteed Maximum Price proposal to supplement the
information contained in the Drawings and Specifications.
(c) The proposed Guaranteed Maximum Price, including a statement of the
estimated cost organized by trade categories, contingency, and other items and the Fee that
comprise the Guaranteed Maximum Price.
(d) The Date of Substantial Completion upon which the proposed
Guaranteed Maximum Price is based, and a schedule of the Construction Documents issuance
dates upon which the date of Substantial Completion is based.
2.2.3.2 The Construction Manager shall meet with the City and Owner's
Designated Representative to review the Guaranteed Maximum Price proposal and the written
statement of its basis. In the event that the City or Owner's Designated Representative
discover any inconsistencies or inaccuracies in the information presented, they shall promptly
notify the Construction Manager, who shall make appropriate adjustments to the Guaranteed
Maximum Price proposal, its basis, or both. This proposal shall provide the Owner no less than
ten days to accept the GMP without invalidating the proposal or any of its terms.
2.2.3.3 Unless the City accepts the Guaranteed Maximum Price proposal in
writing on or before the date specified in the proposal for such acceptance and so notifies the
Construction Manager, the Guaranteed Maximum Price proposal shall not be effective without
written acceptance by the Construction Manager.
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2.2.3.4 Prior to the City's acceptance of the Construction Manager's Guaranteed
Maximum Price proposal and issuance of a Notice to Proceed, the Construction Manager shall
not incur any cost to be reimbursed as part of the Cost of the Work, except as the City may
specifically authorize in writing.
2.2.3.5 Upon acceptance by the City of the Guaranteed Maximum Price proposal,
the Guaranteed Maximum Price and its basis shall be set forth in Amendment No. 1. The
Guaranteed Maximum Price shall be subject to additions and deductions by a change in the Work
as provided in the Contract Documents, and the Date of Substantial Completion shall be subject
to adjustment as provided in the Contract Documents.
2.2.3.6 The City shall authorize and cause the Design Engineer to revise the
Drawings and Specifications to the extent necessary to reflect the agreed-upon assumptions
and clarifications contained in Amendment No. 1. Such revised Drawings and Specifications
shall be furnished to the Construction Manager in accordance with schedules agreed to by
the City, Design Engineer and Construction Manager. The Construction Manager shall
promptly notify the Owner's Designated Representative and City if such revised Drawings and
Specifications are inconsistent with the agreed- upon assumptions and clarifications.
2.3 Construction Phase.
2.3.1 General.
2.3.1.1 The Construction Phase shall commence on:
a) the City's acceptance of the Construction Manager's
Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, and
b) the City's first authorization to the Construction Manager to:
1. award a subcontract, or
2. undertake construction Work with the Construction
Manager's own forces, or
3. issue a purchase order for materials or equipment required for the
Work.
2.4 Administration.
2.4.1 Those portions of the Work that the Construction Manager does not
customarily perform with the Construction Manager's own personnel shall be
performed under subcontracts or by other appropriate agreements with the
Construction Manager. The Construction Manager shall obtain bids in
accordance with the applicable requirements of Chapter 2269 of the Texas
Government Code from Subcontractors and from suppliers of materials or
equipment fabricated to a special design for the Work from the list previously
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reviewed and, after analyzing such bids, shall deliver such bids to the City and
Owner's Designated Representative.The City will then determine,with the advice of
the Construction Manager, which bids will be accepted. The City may designate
specific persons or entities from whom the Construction Manager shall obtain
bids; however, if the Guaranteed Maximum Price has been established, the City
may not prohibit the Construction Manager from obtaining bids from other
qualified bidders. The Construction Manager shall not be required to contract
with anyone to whom the Construction Manager has reasonable objection.
2.4.2 If the Guaranteed Maximum Price has been established and a specific
bidder among those whose bids are delivered by the Construction Manager to the
City and Owner's Designated Representative (1) is recommended to the City by
the Construction Manager; (2) is qualified to perform that portion of the Work;
and (3) has submitted a bid which conforms to the requirements of the Contract
Documents without reservations or exceptions, but the City requires that another
bid be accepted, then the Construction Manager may require that a change in the
Work be issued to adjust the Contract Time and the Guaranteed Maximum Price
by the difference between the bid of the person or entity recommended to the City
by the Construction Manager and the amount of the subcontract or other
agreement actually signed with the person or entity designated by the City.
2.4.3 Subcontracts and agreements with suppliers furnishing materials or
equipment fabricated to a special design shall conform to the payment provisions
of Paragraphs 7.1.8 and 7.1.9 and shall not be awarded on the basis of cost plus a
fee without the prior consent of the City.
2.4.4 The Construction Manager shall schedule and conduct meetings with
appropriate Subcontractors at which the City, Owner's Designated Representative
and/or Design Engineer, Construction Manager and appropriate Subcontractors
can discuss the status of the Work. The Construction Manager shall prepare and
promptly distribute meeting minutes.
2.4.5 Promptly after the City's acceptance of the Guaranteed Maximum Price
proposal, the Construction Manager shall prepare a schedule in accordance with
Paragraph 1.5.11, General Conditions, including the Owner's occupancy
requirements.
2.4.6 The Construction Manager shall provide monthly written reports to the
City and Owner's Designated Representative on the progress of the entire Work.
The Construction Manager shall maintain a daily log containing a record of
weather, Subcontractors working on the site, number of workers, Work
accomplished, problems encountered and other similar relevant data as the City
may reasonably require. The log shall be available to the City and Owner's
Designated Representative. The Construction Manager shall promptly inform City
in writing of any circumstance or development that is likely to delay Substantial
Completion of the Project in accordance with the schedule.
2.4.7 The Construction Manager shall develop a system of cost control for
the Work, including regular monitoring of actual costs for activities in progress
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and estimates for uncompleted tasks and proposed changes. The Construction
Manager shall identify variances between actual and estimated costs and report
the variances to the City and Owner's Designated Representative at regular
intervals.
2.4.8 Professional Services. Paragraph 1.5.14.10, General Conditions shall
apply to both the Construction Planning Services and Construction Phase.
2.4.9 Hazardous Materials. Paragraph 1.12.3, General Conditions shall apply
to both the Construction Planning Services and Construction Phases.
SECTION 3 OWNER'S RESPONSIBILITIES.
3.1 Information and Services.
3.1.1 The Owner shall provide information in a timely manner regarding
the requirements of the Project, including a program which sets forth the City's
objectives, constraints and criteria, including space requirements and
relationships, flexibility and expandability requirements, special equipment
and systems, and site requirements.
3.1.2 The City shall establish and update an overall budget for the Project,
based on consultation with the Construction Manager and Owner's Designated
Representative, which shall include contingencies for changes in the Work and
other costs which are the responsibility of the City.
3.1.3 Structural and Environmental Tests, Surveys and Reports. In the
Construction Planning Services Phase, the City shall furnish the following with
reasonable promptness and at the City's expense. Except to the extent that the
Construction Manager knows of any inaccuracy, or should have reasonably
discovered such error or inaccuracy, the Construction Manager shall be
entitled to rely upon the accuracy of any such information, reports, surveys,
drawings and tests
described in Paragraphs 3.1.3.1 through 3.1.3.4 but shall exercise customary
precautions relating to the performance of the Work.
3.1.3.1 Reports, surveys,drawings and tests concerning the conditions of the
site which are required by law.
3.1.3.2 Surveys describing physical characteristics, legal limitations and
utility locations for the site of the Project, and a written legal description of
the site.
3.1.3.3 The services of a geotechnical engineer when such services are
requested by the Construction Manager and are reasonably required by
the scope of the Project, as determined by the City or Design Engineer.
Such services may include but are not limited to test borings, test pits,
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determinations of soil bearing values, percolation tests, evaluations of
hazardous materials, ground corrosion and resistivity tests, including
necessary operations for anticipating subsoil conditions, with reports and
appropriate professional recommendations.
3.1.3.4 Structural, mechanical, chemical, air and water pollution tests, tests
for hazardous materials, and other laboratory and environmental tests,
inspections and reports which are required by law.
3.1.3.5 The services of other consultants when such services are reasonably
required by the scope of the Project, as determined by the City or Design
Engineer, and are requested by the Construction Manager.
3.2 Owner's Designated Representative. The City shall designate in writing City's
Representative who shall have express authority, subject to the limitations set forth
in the General Conditions, to bind the City with respect to all matters requiring
the City's approval or authorization. This City's Representative shall have the
authority to make decisions on behalf of the City concerning estimates and
schedules, construction budgets, and changes in the Work, and shall render such
decisions promptly and furnish information expeditiously, so as to avoid
unreasonable delay in the services or Work of the Construction Manager. Except
as otherwise provided in Paragraph 1.6.2.1, General Conditions, the Design
Engineer does not have such authority.
3.3 Design Engineer. The City shall retain a Design Engineer(s) to provide Basic
Services, including normal structural, mechanical and electrical engineering
services. The City must authorize, in writing, and cause the Design Engineer to
provide additional service, requested by the Construction Manager which must
necessarily be provided by the Design Engineer for the Construction
Planning Services and Construction Phases of the Work. Construction
Manager has no authority to request services from the Design Engineer on the
City's behalf. Such services shall be provided in accordance with time schedules
agreed to by the City, Design Engineer and Construction Manager. Upon
request of the Construction Manager, the City shall furnish to the Construction
Manager a copy of the City's Agreement with the Design Engineer.
SECTION 4 COMPENSATION AND PAYMENTS FOR CONSTRUCTION PLANNING
PHASE SERVICES.
The City shall compensate and make payments to the Construction Manager for Construction
Planning Phase services as follows:
4.1 Compensation for Construction Planning Servcies.
4.1.1 For the services described in Paragraphs 2.1 and 2.2, the Construction
Manager's compensation shall be calculated as follows:
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Construction Planning Services Fee: $992,320.00
(nine hundred ninety two thousand three hundred and
twenty dollars)
Owner's Allowance payable on an As Authorized Basis: $100.00.00
(one hundred thousand dollars)
Total Construction Planning Services Contract Value: $1,092,320.00
(one million, ninety two thousand three
hundred twenty dollars)
4.1.1 If compensation is based on a multiple of Direct Personnel
Expense, Direct Personnel Expense is defined as the direct salaries
of the Construction Manager's personnel engaged in the Project and
the portion of the cost of their mandatory and customary
contributions and benefits related thereto, such as employment taxes
and other statutory employee benefits, insurance, sick leave, holidays,
vacations, pensions and similar contributions and benefits.
4.2 Payments.
4.2.1 Payments shall be made monthly following presentation of the
Construction Manager's invoice and, where applicable, shall be in
proportion to services performed.
4.2.2 Payments are due and payable thirty(30)calendar days from the date
the correct and approved Construction Manager's invoice is received
by the Owner.
4.2.3 The City stipulates that it is an exempt organization as defined by
the Limited Sales, Excise and Use Tax Act and, as such, is exempt
from the payment of the sales tax on materials and supplies used in
the performance of this Contract. The Construction Manager shall
issue exemption certificates to its Subcontractors and suppliers in
lieu of said sales tax for all such materials and supplies, complying
with all applicable State Comptroller's Rulings.
SECTION 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES
The City shall compensate the Construction Manager for Construction Phase services as
follows:
General Conditions: $ negotiable, to be provided as an itemized component cost of the GMP
5.1 Compensation.
5.1.1 For the Construction Manager's performance of the Work as described in
Paragraph 2.3, the City shall pay the Construction Manager in current funds the
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Contract Sum consisting of the Cost of the Work as defined in Paragraph 7 and the
Construction Manager's Fee determined as follows:
Construction Manager At Risk Fee (as a Percentage): 4.85
Major Direct Equipment Fee (as a Percentage: 2.75%
(applicable on the first$10 million of major direct equipment purchase no requiring
competitive sealed proposal or significant bid evaluation)
5.2 Guaranteed Maximum Price.
5.2.1 The sum of the Cost of the Work and the Construction Manager's Fee for
the Work are guaranteed by the Construction Manager not to exceed the amount
provided in Amendment No. 1, subject to additions and deductions by changes in
the Work as provided in the Contract Documents. Such maximum sum as
adjusted by approved changes in the Work is referred to in the Contract
Documents as the Guaranteed Maximum Price. Costs which would cause the
Guaranteed Maximum Price to be exceeded shall be paid by the Construction
Manager without reimbursement by the City. In the event the Cost of Work
plus the Construction Manager's Fee is less than the Guaranteed Maximum Price
("GMP"), the savings shall accrue one hundred percent(100%) to the City.
5.3 Chances in the Work.
5.3.1 Adjustments to the Guaranteed Maximum Price on account of changes in the
Work subsequent to the execution of Amendment No. I may be determined by any of
the methods listed in Paragraph 1.9.2.2, General Conditions, subject to the limitations
provided in the General Conditions.
5.3.1.1 In calculating adjustments to subcontracts (except those awarded
with the Owner's prior consent on the basis of cost plus a fee), the terms "cost" and
"fee" as used in Paragraph 1.9.2.2 (c), General Conditions and the term "costs" as
used in Paragraph 1.9.3.6, General Conditions shall have the meanings assigned to
them in the General Conditions and shall not be modified by this Paragraph 5.
Adjustments to subcontracts awarded with the City's prior consent on the basis of
cost plus a fee shall be calculated in accordance with the terms of those subcontracts.
5.3.1.2 In calculating adjustments to the Contract, the terms "cost" and
"costs" as used in the above-referenced provisions of the General Conditions shall
mean the Cost of the Work as defined in Paragraph 6 of this Agreement, and the term
"and a reasonable allowance for overhead and profit" shall mean the Construction
Manager's Fee as defined in Paragraph 5.1.1 of this Agreement.
5.3.1.3 If no specific provision is made in Paragraph 5.1.1 for adjustment
of the Construction Manager's Fee in the case of changes in the Work, or if the extent
of such changes is such, in the aggregate, that application of the adjustment
provisions of Paragraph 5.1.1 will cause substantial inequity to the Owner or
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Construction Manager, the Construction Manager's Fee shall be equitably adjusted on
the basis of the Fee established for the original Work.
SECTION 6 COST OF THE WORK FOR CONSTRUCTION PHASE.
6.1 Costs To Be Reimbursed.
6.1.1 The term "Cost of the Work" shall mean costs necessarily incurred by the
Construction Manager in the proper performance of the Work. Such costs shall
be at rates not higher than those customarily paid at the place of the Project
except with prior consent of the City. The Cost of the Work shall include only the
items set forth in this Paragraph 6.
6.1.1.1 Labor Costs.
6.1.1.1.1 Wage Rates. Pursuant to Section 2258.023(a) of the
Texas Government Code, wage rates paid by the Contractor and any
subcontractor on this Project shall be not less than the general prevailing
rate of per diem wages for work of a similar character in this locality as
specified in the schedule of general prevailing rates of per diem wages
attached hereto as ATTACHMENT 3.
6.1.1.1.2 Statutory Penalty. Pursuant to Section 2258.023(b) of the
Texas Government Code, if the Contractor or any subcontractor violates the
requirements of this section the Contractor or subcontractor as the case may
be shall pay the City Sixty Dollars ($60.00) for each worker employed for
each calendar day or part of the day that the worker is paid less than the
stipulated wage rates.
6.1.1.1.3 Wages of construction workers directly employed by the
Construction Manager to perform the construction of the Work at the site
or, with the Owner's agreement,at off-site workshops.
6.1.1.1.4 Wages or salaries of the Construction Manager's supervisory
and administrative personnel when stationed at the site with the Owner's
agreement. See attached Position/Rate table
No. Description Hourly Rate ($ per
hour)
1 Project Executive 150
2 Project Manager 125
3 Estimator 100
4 Safety/Field Operation 100
Manager
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5 Lead Superintendent 125
6 Assistant Superintendent 100
7 Project Engineer 80
8 Quality Control Inspector 100
9 Contract Administrator 70
10
11
12 Labor Burden 46%
6.1.1.1.5 Wages and salaries of the Construction Manager's
supervisory or administrative personnel engaged, at factories, workshops or on
the road, in expediting the production or transportation of materials or equipment
required for the Work, but only for that portion of their time required for the
Work. Further, the time for performance does not necessitate overtime work and
the City shall not be required to reimburse the "premium time" portion of any
overtime payments by Contractor, unless otherwise approved, in writing, in
advance by the City.
6.1.1.1.6 Costs paid or incurred by the Construction Manager for taxes,
insurance, contributions, assessments and benefits required by law or collective
bargaining agreements,and, for personnel not covered by such agreements,
customary benefits such as sick leave,medical and health benefits,holidays,vacations
and pensions,provided that such costs are based on wages and salaries included in
the Cost of the Work under Paragraphs 6.1.1.1.1 through 6.1.1.1.4.
6.1.1.1.7 Subcontract Costs. Payments made by the Construction
Manager to Subcontractors in accordance with the requirements of the
subcontracts.
6.1.1.1.8 Costs of Materials and Equipment Incorporated in the
Completed Construction.
(a) Costs, including transportation, of materials and equipment
incorporated or to be incorporated in the completed construction.
(b) Costs of materials described in the preceding Paragraph
6.1.1.1.8.(a) in excess of those actually installed but required to provide
reasonable allowance for waste and for spoilage. Unused excess
materials, if any, shall be handed over to the City at the completion of the
Work or, at the City's option, shall be sold by the Construction Manager;
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amounts realized, if any, from such sales shall be credited to the City as a
deduction from the Cost of the Work.
6.1.1.1.9 Costs of Other Materials and Equipment, Temporary
Facilities and Related Items.
(a) Costs, including transportation, installation, maintenance,
dismantling and removal of materials, supplies, temporary facilities, machinery,
equipment, and hand tools not customarily owned by the construction workers,
which are provided by the Construction Manager at the site and fully consumed in
the performance of the Work; and cost less salvage value on such items if not fully
consumed, whether sold to others or retained by the Construction Manager. Cost
for items previously used by the Construction Manager shall mean fair market
value.
(b) Rental charges for temporary facilities, machinery,
equipment and hand tools not customarily owned by the construction workers,
which are provided by the Construction Manager at the site, whether rented from
the Construction Manager or others, and costs of transportation, installation, minor
repairs and replacements, dismantling and removal thereof. Rates and quantities of
equipment rented shall be subject to the City's prior approval.
(c) Costs of removal of debris from the site.
(d) Reproduction costs, costs of telegrams, facsimile
transmissions and long-distance telephone calls, postage and express delivery
charges, telephone at the site and reasonable petty cash expenses of the site office.
(e) That portion of the reasonable travel and subsistence
expenses of the Construction Manager's personnel incurred while traveling in
discharge of duties connected with the Work.
6.1.1.1.10 Miscellaneous Costs.
(a) That portion directly attributable to this Contract of
premiums for insurance and bonds.
(b) Fees and assessments for the building permit and for other
permits, licenses and inspections for which the Construction Manager is required
by the Contract Documents to pay.
(c) Fees of testing laboratories for tests required by the Contract
Documents, except those related to nonconforming Work other than that for which
payment is permitted by Paragraph 6.1.1.1.10.
(d) Royalties and license fees paid for the use of a particular
design, process or product required by the Contract Documents; the cost of
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defending suits or claims for infringement of patent or other intellectual property
rights arising from such requirement by the Contract Documents; payments made
in accordance with legal judgments against the Construction Manager resulting
from such suits or claims and payments of settlements made with the City's
consent; provided, however, that such costs of legal defenses, judgment and
settlements shall not be included in the calculation of the Construction Manager's
Fee or the Guaranteed Maximum Price and provided that such royalties, fees and
costs are not excluded by the last sentence of Paragraph 1.5.19.1, General
Conditions or other provisions of the Contract Documents.
(e) Data processing costs related to the Work.
(0 Deposits lost for causes other than the Construction
Manager's negligence or failure to fulfill a specific responsibility to the City set
forth in this Agreement.
6.1.1.1.11 Other Costs. Other costs incurred in the performance of the
Work if and to the extent approved in advance in writing by the City.
The costs described in Paragraphs 6.1.1.1 through 6.1.1.11 shall be included
in the Cost of the Work notwithstanding any provision of General
Conditions of the Contract which may require the Construction Manager to
pay such costs, unless such costs are excluded by the provisions of
Paragraph 6.2.
6.2 Costs Not To Be Reimbursed.
6.2.1.1 The Cost of the Work shall not include:
(a) Salaries and other compensation of the Construction
Manager's personnel stationed at the Construction Manager's principal office or
offices other than the site office, except as specifically provided in Paragraphs
6.1.1.1.4 and 6.1.1.1.5
(b) Expenses of the Construction Manager's principal office and
offices other than the site office, except as specifically provided in Paragraph 6.1.
(c) Overhead and general expenses, except as may be expressly
included in Paragraph 6.1.
(d) The Construction Manager's capital expenses, including
interest on the Construction Manager's capital employed for the Work.
(e) Rental costs of machinery and equipment, except as
specifically provided in Paragraph 6.1.1.1.9(b).
(f) Costs due to the negligence of the Construction Manager or
to the failure of the Construction Manger to fulfill a specific responsibility to the
City set forth in this Agreement.
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(g) Costs incurred in the performance of Construction Planning
Phase Services.
(h) Except as provided in Paragraph 6.1.1.1.11, any cost not
specifically and expressly described in Paragraph 6.1.
(i) Costs which would cause the Guaranteed Maximum Price to
be exceeded.
6.3 Discounts,Rebates and Refunds.
6.3.1.1 Cash discounts obtained on payments made by the Construction Manager
shall accrue to the City if(1) before making the payment, the Construction Manager included
them in an Application for Payment and received payment therefor from the City, or(2) the City
has deposited funds with the Construction Manager with which to make payments; otherwise,
cash discounts shall accrue to the Construction Manager. Trade discounts, rebates, refunds and
amounts received from sales of surplus materials and equipment shall accrue to the City, and the
Construction Manager shall make provisions so that they can be secured.
6.3.1.2 Amounts which accrue to the City in accordance with the provisions of
Paragraph 6.3.1 shall be credited to the City as a deduction from the Cost of the Work.
6.4 Accounting Records.
6.4.1.1 The Construction Manager shall keep full and detailed accounts and
exercise such controls as may be necessary for proper financial management under this Contract;
the accounting and control systems shall be satisfactory to the City. The City and the City's
accountants shall be afforded access to the Construction Manager's records, books,
correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers,
memoranda and other data relating to this Project, and the Construction Manager shall preserve
these for a period of three years after final payment, or for such longer period as may be required
by law.
SECTION 7 PAYMENT.
7.1 Progress Payments.
7.1.1 Based upon Applications for Payment submitted to the Owner's
Designated Representative by the Construction Manager, in a form acceptable to City and
the Owner's Designated Representative , and Certificates for Payment issued by the Owner's
Designated Representative, the City shall make progress payments on account of the
Contract Sum to the Construction Manager as provided below and elsewhere in the Contract
Documents.
7.1.1.1 The period covered by each Application for Payment shall be one calendar
month ending on the last day of the month.
7.1.1.2 Provided an Application for Payment is received by the Owner's
Designated Representative not later than the 30th day of a month, the City shall make payment to
the Construction Manager not later than the 30`h day of the following month. If an
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Application for Payment is received by the Owner's Designated Representative after the
application date fixed above, payment shall be made by the City not later than thirty (30) days
after the Owner's Designated Representative receives the Application for Payment.
7.1.1.3 With each Application for Payment, the Construction Manager shall
submit payrolls, petty cash accounts, receipted invoices or invoices with check vouchers attached
and any other evidence required by the City or Owner's Designated Representative to
demonstrate that cash disbursements already made by the Construction Manager on account of
the Cost of the Work equal or exceed
(1)progress payments already received by the Construction Manager; less(2)that portion of those
payments attributable to the Construction Manager's Fee; plus (3)payrolls for the period covered
by the present Application for Payment.
7.1.1.4 Each Application for Payment shall be based upon the most recent
schedule of values submitted by the Construction Manager in accordance with the Contract
Documents. The schedule of values shall allocate the entire Guaranteed Maximum Price among
the various portions of the Work, except that the Construction Manager's Fee shall be shown as
a single separate item. The schedule of values shall be prepared in such form and supported by
such data to substantiate its accuracy as the City and Owner's Designated Representative may
require. This schedule, unless objected to by the City or Owner's Designated Representative,
shall be used as a basis for reviewing the Construction Manager's Applications for Payment.
7.1.1.5 Applications for Payment shall show the percentage completion of each
portion of the Work as of the end of the period covered by the Application for Payment. The
percentage completion shall be the lesser of(1) the percentage of that portion of the Work which
has actually been completed or(2)the percentage obtained by dividing(a)the expense which has
actually been incurred by the Construction Manager on account of that portion of the Work for
which the Construction Manager has made or intends to make actual payment prior to the next
Application for Payment by (b) the share of the Guaranteed Maximum Price allocated to that
portion of the Work in the schedule of values.
7.1.1.6 Subject to other provisions of the Contract Documents,the amount of each
progress payment shall be computed as follows:
(a) Take that portion of the Guaranteed Maximum Price properly
allocable to completed Work as determined by multiplying the percentage
completion of each portion of the Work by the share of the Guaranteed Maximum
Price allocated to that portion of the Work in the schedule of values. Pending final
determination of cost to the City of changes in the Work, amounts not in dispute
may be included as provided in Paragraph 1.9.3.7, General Conditions, even though
the Guaranteed Maximum Price has not yet been adjusted by Change Order.
(b) Add that portion of the Guaranteed Maximum Price properly
allocable to materials and equipment delivered and suitably stored at the site for
subsequent incorporation in the Work or, if approved in advance by the City,
suitably stored off the site at a location agreed upon in writing.
(c) Add the Construction Manager's Fee, less retainage of: (i) ten
percent (10%) where the GMP is less than $400,000; or (ii) five percent (5%)
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where the GMP is $400,000 or more. The Construction Manager's Fee shall be
computed upon the Cost of the Work described in the two preceding Paragraphs at
the rate stated in Paragraph 5.1.1 or, if the Construction Manager's Fee is stated as
a fixed sum in that Paragraph, shall be an amount which bears the same ratio to that
fixed-sum Fee as the Cost of the Work in the two preceding Paragraphs bears to a
reasonable estimate of the probable Cost of the Work upon its completion.
(d) Subtract the aggregate of previous payments made by the City.
(e) Subtract the shortfall, if any, indicated by the Construction
Manager in the documentation required by Paragraph 7.1.4 to substantiate prior
Applications for Payment, or resulting from errors subsequently discovered by the
City's accountants in such documentation.
(f) Subtract amounts, if any, for which the Owner's Designated
Representative has withheld or nullified a Certificate for Payment as provided in
Paragraph 1.11.5, General Conditions.
7.1.1.7 Except with the City's prior approval, payments to Subcontractors shall
be subject to retention of not less than five percent(5%). The City and the Construction Manager
shall agree upon a mutually acceptable procedure for review and approval of payments and
retention for subcontracts.
7.1.1.8 Except with the City's prior approval, the Construction Manager shall not
make advance payments to suppliers for materials or equipment which have not been delivered
and stored at the site.
7.1.1.9 In taking action on the Construction Manager's Applications for Payment,
the Owner's Designated Representative shall be entitled to rely on the accuracy and
completeness of the information furnished by the Construction Manager and shall not be
deemed to represent that the Design Engineer has made a detailed examination, audit or
arithmetic verification of the documentation submitted in accordance with Paragraph 7.1.4 or
other supporting data, that the Owner's Designated Representative has made exhaustive or
continuous on-site inspections or that the Owner's Designated Representative has made
examinations to ascertain how or for what purposes the Construction Manager has used amounts
previously paid on account of the Contract. Such examinations, audits and verifications, if
required by the City, will be performed by the City's accountants acting in the sole interest of the
City.
7.1.2 Final Payment.
7.1.2.1 Final payment shall be made by the City to the Construction Manager
when (1) the Contract has been fully performed by the Construction Manager except for the
Construction Manager's responsibility to correct punch list items or nonconforming Work, as
provided in Paragraph 1.14.2.2, General Conditions, and to satisfy other requirements, if any,
which necessarily survive final payment; (2) a final Application for Payment and a final
accounting for the Cost of the Work have been submitted by the Construction Manager and
reviewed by the City's accountants; and (3) a final Certificate for Payment has then been issued
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by the Owner's Designated Representative and/or Design Engineer; such final payment shall be
made by the City not more than 30 days after the issuance of the Owner's Designated
Representative and/or Design Engineer's final Certificate for Payment, or as follows:
7.1.2.2 The amount of the final payment shall be calculated as follows:
(a) Take the sum of the Cost of the Work substantiated by the
Construction Manager's final accounting and the Construction Manager's Fee, but
not more than the Guaranteed Maximum Price.
(b) Subtract amounts, if any, for which the Owner's Designated
Representative withholds or the City is entitled to withhold under this Agreement,
in whole or in part, a final Certificate for Payment as provided in Paragraph
1.11.5.1, General Conditions or other provisions of the Contract Documents.
(c) Subtract the aggregate of previous payments made by the
Owner. If the aggregate of previous payments made by the City exceeds the
amount due the Construction Manager, the Construction Manager shall
reimburse the difference to the City.
If the aggregate of previous payments made by the City exceeds the amount due the
Construction Manager, the Construction Manager shall reimburse the difference to the
City.
7.1.2.3 The City's accountants will review and report in writing on the
Construction Manager's final accounting within 30 days after delivery of the final accounting to
the Owner's Designated Representative by the Construction Manager, together with all backup
documentation reasonably required by the City. Based upon such Cost of the Work as the
City's accountants report to be substantiated by the Construction Manager's final accounting,
and provided the other conditions of Paragraph 7.2.1 have been met, the Owner's Designated
Representative,within seven days after receipt of the written report of the Owner's accountants,
either issue to the City a final Certificate for Payment with a copy to the Construction Manager
or notify the Construction Manager and Owner in writing of the Owner's Designated
Representative's reasons for withholding a certificate as provided in Paragraph 1.11.5.1,
General Conditions. The time periods stated in this Paragraph 7.2 supersede those stated in
Paragraph 1.11.4.1,General Conditions.
7.1.2.4 If the City's accountants report the Cost of the Work as substantiated by
the Construction Manager's final accounting to be less than claimed by the Construction Manager,
the Construction Manager shall be entitled to proceed in accordance with Paragraph 8 without a
further decision of the Owner's Designated Representative. Unless agreed to otherwise, a
demand for mediation of the disputed amount shall be made by the Construction Manager within
30 days after the Construction Manager's receipt of a copy of the Owner's Designated
Representative's final Certificate for Payment. Failure to make such demand within this 30-day
period shall result in the substantiated amount reported by the City's accountants becoming
binding on the Construction Manager. Pending a final resolution of the disputed amount, the
City shall pay the Construction Manager the amount certified in the Owner's Designated
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Representative's final Certificate for Payment.
7.1.2.5 If, subsequent to final payment and at the City's request, the Construction
Manager incurs costs described in Paragraph 6.1 and not excluded by Paragraph 6.2(1)to correct
nonconforming Work or (2) arising from the resolution of disputes, the City shall reimburse the
Construction Manager such costs and the Construction Manager's Fee, if any, related thereto on
the same basis as if such costs had been incurred prior to final payment, but not in excess of the
Guaranteed Maximum Price. If the Construction Manager has participated in savings,the amount
of such savings shall be recalculated and appropriate credit given to the City in determining the
net amount to be paid by the City to the Construction Manager.
SECTION 8 MISCELLANEOUS PROVISIONS.
8.1 Dispute Resolution.
8.1.1 During both the Construction P tanning and Construction Phases,
claims, disputes or other matters in question between the parties to this Agreement shall be
resolved as provided in Paragraph 1.6.3., General Conditions, except that, during the Construction
Planning Phase services, no decision by the Owner's Designated Representative shall be a
condition precedent to mediation.
8.2 Other Provisions.
8.2.1.1 Extent of Contract. This Contract, which includes this Agreement and
the other documents incorporated herein by reference, represents the entire and integrated
agreement between the City and the Construction Manager and supersedes all prior negotiations,
representations or agreements, either written or oral. This Agreement may be amended only by
written instrument signed by both the City and Construction Manager. If anything in any
document incorporated into this Agreement is inconsistent with this Agreement, this Agreement
shall govern.
8.2.1.2 Ownership and Use of Documents. Paragraph 1.3.4, General
Conditions, shall apply to both the Construction Planning Services and Construction Phases.
8.2.1.3 Governing Law. The Contract shall be governed by the laws of the State
of Texas. Performance and all matters related thereto shall be in Brazoria County, Texas,
United States of America.
8.2.1.4 Assignment. The City and Construction Manager respectively bind
themselves, their partners, successors, assigns and legal representatives to the other party hereto
and to partners, successors, assigns and legal representatives of such other party in respect to
covenants, agreements and obligations contained in the Contract Documents. Neither party to the
Contract shall assign the Contract as a whole without written consent of the other. If either party
attempts to make such an assignment without such consent, that party shall nevertheless remain
legally responsible for all obligations under the Contract.
SECTION 9 TERMINATION OR SUSPENSION.
9.1Termination Prior To Establishing Guaranteed Maximum Price.
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9.1.1 Prior to execution by both parties of Amendment No. 1 establishing the
Guaranteed Maximum Price,the City may terminate this Contract at any time without cause,
and the Construction Manager may terminate this Contract for any of the reasons
described in Paragraph 1.16.1.1, General Conditions.
9.1.1.1 If the City or Construction Manager terminates this Contract pursuant to
Paragraph 9.1 prior to commencement of the Construction Phase, the Construction Manager shall
be equitably compensated for Construction Planning Phase Services performed prior to receipt of
notice of termination; provided, however, that the compensation for such services shall not
exceed the compensation set forth in Paragraph 4.1.1.
9.1.1.2 If the City or Construction Manager terminates this Contract pursuant to
Paragraph 9.1 after commencement of the Construction Phase,the Construction Manager shall be
paid , in addition to the compensation provided in Paragraph 9.1.2, an amount calculated as
follows:
(a) Take the Cost of the Work incurred by the Construction
Manager.
(b) Add the Construction Manager's Fee computed upon the
Cost of the Work to the date of termination at the rate stated in Paragraph 5.1 or, if
the Construction Manager's Fee is stated as a fixed sum in that Paragraph, an
amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work
at the time of termination bears to a reasonable estimate of the probable Cost of the
Work upon its completion.
(c) Subtract the aggregate of previous payments made by the
City on account of the Construction Phase.
The City shall also pay the Construction Manager fair compensation, either by purchase or
rental at the election of the City, for any equipment owned by the Construction Manager
which the City elects to retain and which is not otherwise included in the Cost of the Work
under Paragraph 9.1.3.(a). To the extent that the City elects to take legal assignment of
subcontracts and purchase orders (including rental agreements), the Construction Manager
shall, as a condition of receiving the payments referred to in Paragraph 9, execute and
deliver all such papers and take all such steps, including the legal assignment of such
subcontracts and other contractual rights of the Construction Manager, as the City may
require for the purpose of fully vesting in the City the rights and benefits of the
Construction Manager under such subcontracts or purchase orders.
Subcontracts, purchase orders and rental agreements entered into by the Construction
Manager with the City's written approval prior to the execution of Amendment No. 1 shall
contain provisions permitting assignment to the City as described above. If the City accepts
such assignment, the City shall reimburse the Construction Manager with respect to all
valid and properly payable costs arising under the subcontract, purchase order or rental
agreement except those which would not have been reimbursable as Cost of the Work if
the contract had not been terminated. If the City elects not to accept the assignment of any
subcontract, purchase order or rental agreement which would have constituted a Cost of
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the Work had this agreement not been terminated, the Construction Manager shall
terminate such subcontract, purchase order or rental agreement and the City shall pay the
Construction Manager the costs necessarily and reasonably incurred by the Construction
Manager by reason of such termination, but in no event to include any overhead or profit
on work not performed.
9.1.2 Termination Subsequent to Establishing Guaranteed Maximum Price.
Subsequent to execution by both parties of Amendment No. 1, the Contract may be terminated
as provided in Paragraph 1.16, General Conditions.
9.1.2.1 In the event of such termination by the Owner, the amount payable to the
Construction Manager pursuant to Paragraph 1.16.1.3, General Conditions shall not exceed the
amount the Construction Manager would have been entitled to receive pursuant to Paragraphs
9.1.2 and 9.1.3 of this Agreement.
9.2.2 In the event of such termination by the Construction Manager,the amount to
be paid to the Construction Manager under Paragraph 1.16.1.3, General Conditions shall not
exceed the amount the Construction Manager would have been entitled to receive under
Paragraphs 9.1.2 and 9.1.3 above. In no event shall Construction Manager nor any supplier or
subcontractor be entitled to any fee or lost profits for work not performed.
9.3 Suspension. The Work may be suspended by the City as provided in Paragraph
1.16, General Conditions; in such case, the Guaranteed Maximum Price, if established, shall be
increased as provided in Paragraph 1.16.3.2, General Conditions, except that the term "cost of
performance of the Contract"in that Paragraph shall be understood to mean the Cost of the Work
and the term "profit" shall be understood to mean the Construction Manager's Fee as described
in Paragraphs 5.1.1 and 5.3.4 of this Agreement.
SECTION 10 OTHER CONDITIONS AND SERVICES.
10.1 Construction Manager represents to the City that it has, and will keep in effect at
all times during the term of this Contract, any licenses, permits, and approvals which are legally
required for the Construction Manager to practice its trade.
10.1.1 Authority to do business. The Construction Manager represents that it has a
certificate of authority authorizing it to do business in the State of Texas, a registered agent and
registered office during the duration of this Contract.
10.1.2 Authority to Contract. Each party has the full power and authority to enter into
and perform this Agreement, and the person signing this Agreement on behalf of each party has
been properly authorized and empowered to enter into this Agreement. The persons executing
this Agreement hereby represent that they have authorization to sign on behalf of their respective
corporations.
10.1.3 Severability. In case any one or more of the provisions contained in this Contract
shall for any reason be held to be invalid,illegal,or unenforceable in any respect,such invalidity,
illegality, or unenforceability shall not affect any other provision herein and this Contract shall
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be construed as if such invalid, illegal, or unenforceable provision had never been contained
herein.
10.1.4 Presumption Against Waiver. No waiver by either party hereto of any one or
more defaults by the other party hereto in the performance of this Contract shall be construed as
a waiver of any future defaults whether of a like or different character.
10.1.5 Owner's Reserved Rights. The City shall have the rights by its officers,
employees or agents to examine and inspect the Construction Manager's Work at any time to
verify Construction Manager's compliance with the terms of this Contract. Any approval by
City or acceptance of Construction Manager's Work shall not waive any obligation of
Construction Manager to correct defective work.
10.1.6 Benefit. This Contract shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns where permitted by Contract. Nothing in this
Paragraph shall be construed to waive the conditions elsewhere contained in this Contract
applicable to assignment by the Construction Manager. Nothing contained in this Contract shall
be construed to confer any benefit upon any subcontractor or any other third party.
10.1.7 Headings, Gender, Number. The headings are used in this Agreement for
convenience and reference purposes only and are not intended to define, limit, or describe the
scope or intent of any provision of this Agreement and shall have no meaning or effect upon its
interpretation. Words of any gender used in this Agreement shall be held and construed to
include any other gender, and words in the singular number shall be held to include the plural,
and vice versa,unless the context requires otherwise.
10.1.8 Agreement Read. The parties acknowledge that they have had opportunity to
consult with counsel of their choice, have read, understand and intend to be bound by the terms
and conditions of this Agreement.
10.1.9 Liquidated Damages. The amount of liquidated damages for the Construction
Manager's failure to meet the deadlines for Substantial and/or Final Completion are fixed and
agreed on by the Construction Manager because of the impracticability and extreme difficulty in
fixing and ascertaining the actual damages that the City would in such an event sustain.
The amounts to be charged are agreed to be damages the City would sustain and shall be
retained by the City from current periodic estimates for payment or from final payment. As a
result of the difficulty in estimation, calculation and ascertainment of City's damages due to a
failure of Construction Manager to achieve timely completion of the Work, if the Construction
Manager should neglect, fail, or refuse to either Substantially Complete or Finally Complete the
Work within the time herein specified, or any proper extension thereof granted by the City's
Representative pursuant to the terms of the Contract Documents, then the Construction Manager
does hereby agree as part of the consideration for the awarding of this Agreement that the Owner
may permanently withhold from the Construction Manager's total compensation the sum of
One Thousand Five Hundred and no /100 DOLLARS ($ 1,500.00) for each and every calendar
day that the Construction Manager shall be in default after the time stipulated for
Substantial Completion not as a penalty, but as liquidated damages for the breach of this
Agreement. It being specifically understood that the assessment of liquidated damages may be
made for any failure to meet either or both of the deadlines specified for Substantial Completion
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and/or Final Completion.
10.1.10Final Completion. Contractor shall achieve Final Completion within 30
calendar days of the date of Substantial Completion, failing which, Contractor shall provide a
full time on site superintendent until Final Completion at its own cost and not as a cost of the
Work.
10.1.11 Verification No Boycott Israel. To the extent this Contract is considered a
contract for goods or services subject to § 2270.002 Texas Government Code, Contractor
verifies that it i) does not boycott Israel; and ii) will not boycott Israel during the term of this
Contract.
List of ATTACHMENTS
1 Owner's Insurance Requirements of Contractor
2 Special Conditions of the Contract
3 Wage Rate finding for Building Construction In Brazoria County
4 Appendix A Title VI Assurances
List of Exhibits
A Contractor's Insurance Certificates
B Performance Bond
C Payment Bond
D Maintenance Bond
E Billing Rate Schedule
/ CITY OF PEARLAND
By:Y
By.N.vvOL .
Printe. I me: Ern i uD LOPc_? Cit an ge : 1, V
Title: _ Exec - v t c-E V 1 i ,J��I` Date: p/t� G}i9
Date: 04 /01 1 lc)
APPROVED: APPROVED:
:71 0/2/74//
Notary , o:. G
c.n.zCity Secretary
/'''"I i i l oo'‘ Date: .Z /7
79